-n 


i  -  r 


POLITICAL  SYSTEMS 
IN  TRANSITION 


XTbe  Ccntm^  laew  llQlorlO  Seriee 

W.    F.    WlLLOUGHBY,    GENERAL   EdITOR 


THE  NEW  WORLD  OF  SCIENCE 
Edited  by  Robert  M.  Yerkes 

POLITICAL  SYSTEMS  IN  TRAN- 
SITION 

By  Charles  G.  Fenwick 

THE  WORKERS  AT  WAR 

By  Frank  Julian  Warne 


Other  titles  will  be  published  later 


Ube  Century  flew  Worlb  Series 

POLITICAL  SYSTEMS 
IN  TRANSITION 

WAR-TIME  AND  AFTER 


BY 

CHARLES  G.  FENWICK 

Professor  of  Political  Science,  Bryn  Mawr  College 


NEW  YORK 

THE  CENTURY  CO. 

1920 


Copyright,  1920,  by 
The  Century  Co. 


<: 


h 


W.  W.  WILLOUGHBY 
WITH  SINCERE  REGARD 


42vio8 


PREFACE 

Never  perhaps  have  the  hopes  of  democratic  idealism  been 
higher  than  on  the  day  of  the  signing  of  the  armistice  which 
brought  the  World  War  to  a  close.  It  seemed  as  if  the  prom- 
ised land  of  international  cooperation  and  domestic  regenera- 
tion were  in  sight,  and  that  it  needed  but  a  simple  readjustment 
of  abnormal  conditions  to  mark  the  inauguration  of  a  new 
era.  Autocracy  had  been  overthrown  and  humiliated.  Ger- 
many and  Austria  were  in  the  throes  of  a  revolution,  Turkey 
was  at  the  mercy  of  the  Allies,  and  Russia,  though  for  the 
moment  in  a  state  of  confusion,  was  forever  freed  of  the 
despotic  rule  of  the  Czar  and  his  court.  By  contrast,  the  vic- 
torious democracies,  under  the  inspiration  of  the  ideals  aroused 
by  the  war,  were  prepared  to  take  in  hand  the  conditions  of 
their  national  life  and  reconstruct  their  political  systems  in 
accordance  with  those  fundamental  principles  of  justice  which 
had  been  evoked  against  their  common  enemy.  The  world 
had  been  made  safe  for  democracy;  democracy  was  now  to 
prove  itself  worthy  of  the  sacrifices  made  in  its  name. 

The  anniversary  of  the  signing  of  the  armistice  was  a  day 
of  complete  disillusionment.  Autocracy  was  still  overthrown, 
but  it  seemed  doubtful  whether  in  some  of  the  states  it  had 
not  been  succeeded  by  a  dictatorship  of  the  proletariat  far 
more  dangerous  than  its  own  regime  had  been.  Germany,  with 
its  new  democratic  constitution,  gave  some  promise  of  sta- 
bility; but  it  was  believed  by  many  that  there  had  been  no 
change  of  heart  on  the  part  of  the  German  people,  and  that 
the  conception  of  state  morality  which  had  characterized  the 
Germany  of  1914  persisted  as  strongly  as  ever  under  the  rule 
of  the  people.  Austria  and  Hungary  were  reduced  to  the 
point  of  utter  national  exhaustion,  while  Russia  had  revived 
for  the  time  the  despotism  of  the  Czar  in  the  reaction  of  its 
more  radical  elements  against  counter-revolutionary  move- 
ments and  the  intervention  of  the  Allied  armies.     On  the  other 


Vlll 


PREFACE 


hand  the  democratic  governments  had  apparently  made  no 
progress  whatever  towards  the  fulfillment  of  the  hopes  of 
reconstruction  and  reform.  France  and  Italy  were  wholly 
absorbed  in  the  effort  to  consolidate  the  fruits  of  victory ;  Great 
Britain  was  in  the  hands  of  a  Parliament  which  had  been  elected 
at  an  inopportune  time,  and  which  was  intent  upon  maintain- 
ing imperial  interests  and  seemed  not  to  be  seriously  concerned 
with  the  task  of  improving  social  conditions  at  home.  In  the 
United  States  the  contest  between  a  Democratic  President  and 
a  Republican  Senate  had  brought  the  machinery  of  govern- 
ment to  a  deadlock,  and  practical  problems  of  domestic  read- 
justment stood  neglected  in  the  presence  of  artificial  diflFerences 
created  by  the  struggle  for  party  control.  The  old  order  not 
only  had  not  changed,  but  it  seemed  to  be  in  many  respects 
more  strongly  entrenched  than  ever.  Judging  by  actual  ac- 
complishments there  was  little  to  show  that  there  was  in  the 
minds  of  statesmen  any  higher  purpose  than  to  return  to  the 
accustomed  ways  of  19 14. 

If  in  outward  appearance,  however,  there  was  and  is  still 
but  little  change  in  the  political  systems  of  the  great  demo- 
cratic nations,  one  has  only  to  look  beneath  the  surface  to  find 
new  forces  at  work  which  may  in  time  fulfil  the  high  ideals 
which  the  war  called  forth.  While  Germany,  Austria,  Hun- 
gary, and  Russia  are  working  out  with  varying  degrees  of  in- 
ternal disturbance  their  new  forms  of  democratic  government, 
the  older  democratic  nations  are  passing  through  a  critical 
phase  in  their  history.  The  changes  which  they  underwent 
in  adjusting  their  governments  to  the  demands  of  war,  and 
the  further  changes  required  to  place  their  governments  again 
upon  a  peace  basis,  have  brought  to  the  surface  many  of  the 
fundamental  principles  of  democracy  which  had  become  buried 
beneath  the  routine  of  normal  political  life.  The  task  of  trans- 
forming a  whole  nation  into  an  efficient  fighting  machine  made 
it  necessary  to  demand  sacrifices  from  the  individual  citizen 
which  could  only  be  obtained  in  full  measure  by  an  appeal  to 
the  noblest  motives  of  citizenship.     But  the  emphasis  laid  upon 


PREFACE 


IX 


duty  to  the  state  naturally  led  to  the  inquiry  whether  the  state 
in  its  existing  form  was  worthy  of  the  sacrifice  which  it  de- 
manded. As  an  organization  for  tht  promotion  of  freedom 
and  justice,  true  to  its  purpose,  the  state  might  well  ask  for 
all  that  the  citizen  could  give  to  preserve  it.  But  if  the  state 
were  in  any  way  the  instrument  of  special  privilege  for  the 
few  as  against  the  interests  of  the  many,  if  the  state  fostered 
an  industrial  autocracy  which  made  political  democracy  mean- 
ingless, if  the  state  defeated  its  own  purpose  by  preventing 
the  free  expression  of  public  opinion  and  denying  the  equality 
of  rights  which  it  was  intended  to  protect  and  maintain,  then 
its  absolute  claim  upon  the  life  and  property  of  the  citizen  was 
far  less  convincing  than  had  been  assumed.  The  issues  thus 
raised  are  still  a  powerful  undercurrent  in  American  political 
life,  and  in  somewhat  different  form  in  the  political  life  of 
Great  Britain,  of  France  and  of  Italy. 

In  addition  to  this  inquiry  into  fundamental  principles  fur- 
ther questions  are  being  put  as  to  the  organization  of  the 
state  and  the  scope  of  the  functions  it  is  to  perform.  In  the 
United  States  the  war  has  made  it  clear  to  all  that  there  are 
serious  defects  in  the  machinery  of  the  Government;  while  the 
emergency  in  which  those  defects  were  manifested  has  im- 
pressed upon  us  in  a  forcible  way  the  need  of  radical  amend- 
ments to  our  constitutional  system.  Apart  from  the  experi- 
ence of  the  war  it  is  a  common  observation  that  modern  democ- 
racy, in  growing  more  and  more  complex  in  its  machinery, 
tends  of  necessity  to  defeat  its  object  of  securing  freedom 
and  justice  unless  constant  readjustments  are  made  to  offset 
the  control  of  special  groups  and  factions.  In  like  manner 
the  necessity  which  the  war  created  of  bringing  under  national 
control  the  production  and  distribution  of  essential  supplies 
has  raised  the  issue  of  permanent  government  control  wher- 
ever this  is  necessary  to  protect  the  public  against  artificial 
restraints  of  trade.  At  the  same  time  critical  strikes  in  the 
great  industrial  centers  have  called  for  the  intervention  of  the 
Government  between  labor  and  capital  in  the  interest  of  safe- 


X  PREFACE 

guarding  the  community  as  a  whole.  Thus  the  functions  of 
the  State  have  been  greatly  enlarged,  and  there  is  every  pros- 
pect that  while  still  repudiating  Socialism  as  a  theory  the  State 
will  before  long  have  put  into  practice  many  of  its  more  mod- 
erate principles.  Lastly,  the  war  has  raised  a  new  issue  hith- 
erto outside  the  range  of  practical  politics.  The  problem  of 
international  organization  has  become  the  most  pressing  ques- 
tion upon  the  program  of  reconstruction.  The  participation 
of  the  Unted  States  in  a  permanent  association  of  the  nations 
must,  if  any  practical  results  are  to  be  obtained  from  such 
cooperation,  affect  profoundly  the  conduct  of  our  foreign  re- 
lations and  in  due  time  have  its  reactions  upon  domestc  af- 
fairs as  well.  No  assertions  of  a  traditional  isolation  can  long 
hold  out  against  the  logic  of  the  demand  for  "  a  governed 
world." 

In  view  of  the  urgency  and  importance  of  the  issues  thus 
raised  it  cannot  be  said  that  even  the  democratic  nations  have 
escaped  from  the  war  with  their  political  systems  unshaken 
by  the  great  conflict.  Their  constitutions  may  be  for  the 
time  intact,  but  they  have  entered  upon  a  period  of  transition 
in  which  it  is  to  be  determined  whether  democracy  can  hold 
its  own  not  only  against  the  enemy  from  without  but  against 
the  disintegrating  forces  from  within.  The  present  study  is 
an  attempt  to  survey  the  changes  brought  about  by  the  war  in 
the  governments  of  the  great  nations,  and  particularly  in  that 
of  the  United  States,  and  in  so  doing  to  exhibit,  by  comparison 
and  contrast,  the  relative  strength  and  weakness  of  the  several 
political  systems  and  the  probable  lines  of  future  reconstruc- 
tion. In  the  case  of  the  United  States  special  attention  has 
been  given  to  the  constitutional  questions  involved  in  the  ad- 
justment of  the  government  to  the  demands  of  the  war,  both 
for  the  purpose  of  making  clear  the  principles  involved  in  the 
measures  taken  by  the  Government  and  in  order  to  emphasize 
the  peculiar  problems  of  reorganization  with  which  the  Govern- 
^  ment  is  confronted. 

The  writer  is  indebted  to  the  general  editor  of  the  present 
series,  Mr.  W.  F.  Willoughby,  not  only  for  his  careful  revision 


PREFACE 


XI 


of  the  manuscript,  but  for  many  helpful  suggestions  with  re- 
gard to  the  substance  of  the  volume.  The  publication  by  Mr. 
Willoughby  of  a  study  of  "  Government  Organization  in  War 
Time  and  After "  made  it  possible  for  the  writer  to  omit 
numerous  details  of  War  Administration  in  the  United  States 
and  to  concentrate  upon  the  legal  and  political  aspects  of  the 
problem.  Needless  to  say  the  general  editor  is  not  responsible 
for  the  views  expressed,  in  many  cases  somewhat  tentatively, 
in  the  chapters  dealing  with  problems  of  reconstruction. 

C.  G.  F. 
Bryn  Mawr. 
April,  1920. 


CONTENTS 


PART  I    POLITICAL  IDEALS  AND  DEMANDS  OF  WAR 

PAGE 

Chapter   I    Introduction.    War   a   Test   of   Democratic 

Government 3 

The  war  a  means  of  political  education 3 

An  opportunity  to  test  democratic  government    ....  4 

The  war  a  conflict  of  political  ideals 5 

Democracy  and  efficient  government 7 

Efficiency  in  time  of  war 8 

Value  of  the  tests  of  war  for  the  work  of  reconstruction  .     .  g 

Chapter  II    The  Constitutions  of  the  Great  Nations  on 

the  Eve  of  the  World  War 11 

Political  theory  a  part  of  the  constitution 11 

Individual  character  of  democracy  in  different  countries     .     .  12 

Theory  of  democracy  in  the  United  States 13 

Self-government  of  citizens  and  self-determination  of  groups  14 

Development  of  the  democratic  theory 15 

Moral  character  of  the  democratic  state 10 

American  political  institutions 18 

The  powers  of  the  Federal  Government 18 

The  nature  of  a  written  constitution.    Restrictions  upon  the 

agents  of  government 20 

The  principle  of  checks  and  balances 21 

Criticism  of  the  principle 22 

The  protection  of  individual  rights 23 

Similarity  of  war  problems  in  Great  Britain  and  in  the  United 

States 24 

Democracy  in  Great  Britain.    Representative  government  .     .  24 

The  rights  of  citizens 26 

The  British  Constitution 27 

Elastic  character  of  the  British  Constitution 28 

Popular  control  of  the  government 29 

Ideal  of  French  democracy 30 

Character  of  the  French  Constitution 31 

Checks  and  balances  in  the  French  Government    ....  32 

Instability  of  French  cabinets 2;^ 

Centralization  of  the  French  administrative  system    ...  34 

The  Prussian  theory  of  government 35 

The  German  Constitution  in  1914 36 

Powers  of  the  Kaiser ^y 


xiv  CONTENTS 

PAGE 

Influence  of  Prussia  in  the  Bundesrat 38 

Democratic  character  of  the  Reichstag 39 

The  Constitution  of  Russia  in  1914.     Rights  of  citizens      .     .  40 

Organization  of  the  government 41 

PART  II  CHANGES  BROUGHT  ABOUT  BY  THE  WAR 
IN  THE  POLITICAL  INSTITUTIONS  OF 
EUROPEAN  COUNTRIES.  COMPARISONS 
AND  CONTRASTS 

Chapter  III    Countries  with  Autocratic  Governments  .  45 

War  a  contest  between  whole  peoples 45 

Organization  essential  to  success 45 

/  Initial  advantage  possessed  by  autocracy 46 

I^The  menace  of  autocracy 47 

iSerman  state  socialism  an  advantage  in  time  of  war     ...  48 

Effect  of  paternalistic  government 49 

Control  of  industrial  life 50 

Advantages  of  an  irresponsible  government Si 

Counter-balancing  disadvantages 51 

The  new  German  Government 53 

The  problem  of  federalism 55 

Organization  of  the  government 56 

The  President  of  the  Republic 56 

The  protection  of  fundamental  rights.     Industrial  councils  .  57 

General  character  of  the  new  constitution 58 

The  government  of  Austria-Hungary 59 

Dangers  attending  the  break-up  of  Austria-Hungary  ...  60 

The  protection  of  minorities 61 

Conditions  imposed  by  the  Peace  Conference 63 

Difficulties  of  the  situation 63 

The  fall  of  autocracy  in  Russia 63 

Political  importance  of  the  Russian  revolution 64 

The  heritage  of  the  new  government 65 

Local  government  before  the  revolution 66 

The  electoral  system  of  the  Duma 67 

Organization  of  the  new  Soviet  Government 6& 

Successive  congresses  of  local  Soviets 68 

The  central  government  of  Russia 70 

Indirect  versus  direct  control  of  representatives  ....  70 
Distinction  between  the  Soviet  organization  and  Bolshevist 

principles 72 

Federal  character  of  the  future  Soviet  Republic    ....  73 

Chapter  IV    Countries  with  Democratic  Governments  .  74 

Democracy  at  a  disadvantage  in  time  of  war.    Case  of  Great 

Britain .74 

British  cabinet  government  and  war  policies 75 

The  Liberal  Cabinet 76 


CONTENTS  XV 

PAGE 

The  Coalition  Cabinet 'jy 

The  War  Cabinet   . •     •     •  7^ 

Attitude  of  public  opinion  towards  the  War  Cabinet  .     .  79 

Extension  of  the  legal  duration  of  Parliament  ....  80 

Parliament  during  the  war 81 

The  elections  of  1918 82 

Call  for  reform 83 

Proposals  of  reconstruction 85 

Substantive  war  legislation 80 

Control  over  industrial  life 87 

Government  control  of  the  railways 88 

Munitions  of  war 88 

The  Government  and  Labor 89 

The  Defense  of  the  Realm  Act 90 

Scope  of  the  act 90 

Military  law  extended  to  civilians 92 

Problems  of  reconstruction 92 

The  extension  of  suflFrage 93 

The  new  Labor  Party 94 

Its  reconstruction  program 94 

Program  of  the  Ministry  of  Reconstruction 96 

Value  to  the  United  States  of  political  experiments  in  Great 

Britain 98 

Changes  in  the  Constitution  of  the  British  Empire     ...  99 

Federalism  versus  autonomy 100 

The  Imperial  Commonwealth  and  a  League  of  Nations    .  102 

War  cabinets  in  France 103 

Relation  of  cabinet  changes  to  the  national  morale  .     .     .  lOS 

Parliamentary  government  during  the  war 105 


PART  III    CHANGES  IN  THE  POLITICAL  INSTITU- 
TIONS OF  THE  UNITED  STATES 

Chapter  V    The  War  and  the  Constitution in 

Constitutional  unpreparedness  of  the  United  States  .     .     .     .  in 
The  Constitution  not  solely  responsible  for  the  shortcomings 

of  the  Government 112 

Difficulties  due  to  traditions  of  individualism  .....  113 

Difficulties  due  to  fundamental  personal  rights^    ....  114 

The  Constitution  in  time  of  war *    ....  115 

Congress  as  the  legislature  of  a  sovereign  state    ....  116 

War  powers  without  restrictions 118 

Inferences  from  the  power  "to  raise  and  support  armies"  119 

War  powers  and  state  rights 120 

Individual  rights  in  time  of  war 120 

Chapter  VI    War  Powers  of  the  President 123 

Powers  of  government  and  administrative  organization  sep- 
arately treated 123 

The  President  as  commander-in-chief  of  the  army  and  navy  123 


xvi  CONTENTS 

PACE 

The  President's  authority  over  the  state  militia    ....  125 
Political  powers  assumed  by  the  President  during  the  Civil 

War 126 

Political  powers  exercised  by  President  Wilson     ....  127 

Grounds  of  war  and  objects  sought  by  it 128 

The  recognition  of  new  states 129 

The  President  as  the  agent  of  Congress 131 

Power  of  the  President  to  issue  regulations 131 

Executive  acts  without  warrant  from  Congress  ....  133 

Wide  scope  of  the  executive  power 134 

The  Committee  on  Public  Information 135 

Educational  work  of  the  committee 136 

Criticism  of  the  work  of  the  committee 137 

Need  of  an  agency  of  general  information  on  political 

problems        138 

Chapter  VII    Emergency  Legislation  Adopted  by  Congress  140 

Legislation  in  aid  of  the  mobilization  of  the  national  resources. 

The  Selective  Service  Act 140 

Verdict  of  the  Supreme  Court  upon  its  constitutionality     .  141 

Comparison  with  the  Draft  Act  of  1863 142 

Legislation  for  the  protection  of  men  in  the  military  service  .  143 

Scope  of  the  Civil  Relief  Act 145 

The  War  Risk  Insurance  Act 146 

Provisions  for  allotments,  allowances,  and  compensation  .  146 

Insurance  features  of  the  law 148 

Mobilization  of  material  resources 149 

The  production  of  munitions 150 

Control  over  shipbuilding 151 

Control  over  food  products  and  fuel  supplies 152 

Prohibition  legislation  under  guise  of  food  conservation     .  153 

Constitutionality  of  the  War-time  Prohibition  Act     .     .     .  154 

Constitutionality  of  the  Volstead  Act 156 

Activities  of  the  Food  Administration 156 

Advantages  of  voluntary  agencies 157 

Activities  of  the  Fuel  Administration 158 

Government  operation  of  the  railways 159 

The  bargain  between  the  Government  and  the  railways  .     .  160 

Government  operation  of  telegraph  and  telephone  lines      .     .  161 

War  industries  and  the  problem  of  labor 162 

Government  agencies  for  the  settlement  of  disputes  .     .     .  163 

The  President's  Mediation  Commission 164 

The  Government  as  an  employer  of  labor 165 

Boards  to  adjust  disputes  and  to  determine  policies  .     .     .  165 

Absence  of  compulsion  from  control  over  labor    ....  166 

Legislation  to  prevent  interference  with  the  conduct  of  the  war  168 

The  Espionage  Act 168 

Restrictions  upon  freedom  of  speech  and  of  the  press     .  169 

The  Sedition  Act 170 

Constitutionality  of  the  acts 171 

Political  justification  of  the  Sedition  Act 17S 

Broed  scope  of  the  Sedition  Act r74 


CONTENTS  xvii 

PAGE 

Exclusion  of  obnoxious  publications  from  the  mails  .     .     .  176 

Constitutionality  of  a  press  censorship 176 

The  War  Materials  Destruction  Act 178 

The  Trading  with  the  Enemy  Act 178 

The  problem  of  the  enemy  alien 179 

Control  over  persons  and  property  of  enemy  aliens      .     .  180 

Functions  of  the  Alien  Property  Custodian 181 

Comprehensiveness  of  the  war  powers  of  the  Government  .     .  183 

Chapter  VIII    Changes  in  the  Organization  of  the  Gov- 
ernment        184 

The  Executive  Department  in  time  of  war 184 

The  President  a  "  one-man  "  executive 185 

Extent  of  power  he  may  exercise 185 

The  President  and  the  administrative  departments   .     .     .  180 

The  Council  of  National  Defense  . 188 

Functions  performed  by  the  Council 189 

Criticism  of  the  work  of  the  Council 190 

Proposed  Ministry  of  Munitions 191 

The  proposed  War  Cabinet 192 

The  Overman  Act 193 

The  surrender  of  congressional  powers 194 

Lack  of  cooperation  between  Congress  and  the  Executive  .     .  196 

Position  of  the  President  as  political  leader 197 

Personal  responsibility  assumed  by  President  Wilson      .     .  198 

Impediments  resulting  from  the  committee  system  in  Congress  199 

The  system  of  control  through  licences 200 

Control  through  subsidiary  corporations 201 

Chapter    IX    The    Separate    State    Governments.    New 

Legislation  and  New  Administrative  Activities   ...  203 

The  relation  of  the  separate  state  governments  to  the  war     .  203 
Subordination  of  state  authority  to  federal  jurisdiction  over 

persons 204 

Loss  of  state  control  over  railroads 205 

Encroachments  of  the  Food  and  Fuel  Control  Act  .     .     .  206 

Federal  prohibition  legislation  and  the  States     ....  207 

Enlarged  scope  of  state  activities 209 

Organization  of  reserve  militia  and  state  constabularies     .  210 
State  aid  in  the  administration  of  the   Selective  Service 

Act 211 

Miscellaneous  laws  in  aid  of  men  in  service 213 

Laws  in  aid  of  food  and  fuel  conservation 214 

Laws  to  meet  labor  problems    •     •     ; 215 

Laws  to  assist  in  Americanizing  immigrants 216 

State  espionage  and  sedition  laws 218 

Laws  to  assist  in  controlling  enemy  sympathizers  ....  219 

Laws  directed  against  syndicalists  and  other  radical  groups  220 

State  councils  of  defense 221 

Composition  and  powers  of  the  state  councils     ....  222 


xviii  CONTENTS 

PAGE 

Work  of   the   State   Councils   Section  of  the  Council   of 

National  Defense 223 

Conferences  of  state  governors 223 

Duplication  of  effort  by  federal  and  state  governments  .     .  225 

PART    IV    PROBLEMS    OF    RECONSTRUCTION    IN 
THE  UNITED  STATES  RAISED  BY  THE  WAR 

Chapter  X     New  Ideals  of  Democracy        229 

General  effect  of  the  war  upon  political  institutions  ....  229 

The  principle  of  self-determination 230 

Its  connection  with  the  idea]  of  democracy 231 

The  appeal  to  democratic  ideals  during  the  war 232 

Application  of  the  ideal  to  domestic  conditions     ....  233 

The  demand  for  industrial  democracy 235 

Forms  of  industrial  democracy 236 

Proposals  of  the  Industrial  Conference 238 

Radical  phases  of  industrial  democracy 239 

Necessity  of  experimental  steps 241 

Democracy  and  the  distribution  of  wealth 243 

Constructive  contribution  of  the  war  to  democracy  ....  244 

The  strengthening  of  the  bond  of  national  unity   ....  245 

New  emphasis  upon  the  duties  of  citizenship 246 

The  responsibilities  of  citizenship 247 

Voluntary  associations  as  public  agents 249 

Rights  of  the  community  against  organized  minorities     .     .  250 

Democracy  and  freedom  of  speech 251 

Democratic  control  of  foreign  affairs     .     .     .     .     .     .     .  253 

Chapter  XI    The  Program  of  Political  Reconstruction  .  255 

The  problem  of  centralization  versus  decentralization  .     .     .  256 

Permanent  place  of  the  States  in  the  Federal  Government  .  257 

New  powers  needed  by  the  Federal  Government  ....  258 

Control  over  profiteering 259 

Control  over  nation-wide  strikes 260 

Control  over  the  raw  materials  of  industry 261 

Surrender    of    state    control   over   the    instrumentalities   of 

commerce 262 

Cooperation  as  a  substitute  for  constitutional  unity    .      .     .  263 

The  sphere  of  local  autonomy 265 

The  problem  of  federation 266 

Reorganization  of  the  Federal  Government 267 

Relations  between  Congress  and  the  President 268 

Radical  changes  undesirable 269 

Proposal  that  the  Executive  present  measures  to  Congress  270 

Presidential  initiative  in  legislation 271 

Congressional  initiative  in  theory  and  in  practice          •  272 

Proposed  plan  of  a  national  budget 275 

Transfer  of  legislative  initiative  to  the  President  .  276 


CONTENTS  xix 

PAGE 

Possible  deadlock  between  President  and  Congress  of  dif- 
ferent political  parties 277 

Executive  control  over  steps  leading  to  war 279 

Claims  of  Congress  to  joint  control 280 

Difficulties  of  popular  control  over  foreign  policies     .     .  281 

The  extension  of  the  functions  of  government 282 

Control  over  railroads  and  trusts 283 

Governmental  control  during  the  war 284 

Effect  of  war  measures  upon  peace  policies 285 

Railway  reorganization 286 

Government  ownership  as  a  solution 287 

Private  ownership  with  government  control 288 

The  proposal  of  the  railway  brotherhoods.    The  "  Plumb 

Plan" 290 

Private  versus  public  operation  of  the  telegraph  and  tele- 
phone lines 291 

Government  ownership  of  the  coal  mines 293 

Government  operation  of  the  merchant  marine     ....  294 

Government  control  over  labor.    Compulsory  arbitration     .  295 

Chapter    XII    The    Program    of    International    Recon- 
struction      298 

Effect  of  the  war  upon  international  relations.    Changed  posi- 
tion of  the  United  States 298 

The  principle  of  state  sovereignty 299 

National  armaments  and  international  anarchy     .....  301 
Collective  responsibility  under  a  League  of  Nations     .     .     .  302 
Conditions  of  success  of  an  international  organization  to  main- 
tain peace 304 

Restrictions  .upon  "  sovereignty  " 305 

The  need  of  international  legislation 306 

The  scope  of  arbitration 308 

Objections  to  compulsory  arbitration 309 

National  armaments  and  international  execution  ....  311 

Primary  conditions  of  international  organization 313 

The  conversion  of  public  opinion  into  law 31S 

Index 317 


PART  I 
POLITICAL  IDEALS  AND  THE  DEMANDS  OF  WAR 


POLITICAL  SYSTEMS  IN 
TRANSITION 

CHAPTER  I 

INTRODUCTION.      WAR  A  TEST  OF  DEMOCRATIC  GOVERNMENT 

The  war  a  means  of  political  education.  The  four  years 
of  the  World  War  were  not  only  an  education  for  the  people 
of  all  nations  in  questions  of  foreign  policy  and  international 
relationships,  but  a  means  of  bringing  the  great  masses  of  each 
country  into  touch  with  the  domestic  institutions  of  other  coun- 
tries and  making  them  acquainted  with  forms  of  government 
hitherto  unknown  to  them.  If  the  Triple  Alliance  and  the 
Triple  Entente  came  to  be  freely  discussed  in  the  daily  papers, 
if  Belgium  and  Serbia  came  to  be  household  words,  and 
Czechoslovakia  a  name  which  even  the  unlearned  might  spell, 
no  less  striking  a  growth  took  place  in  our  popular  understand- 
ing of  absolute  and  constitutional  monarchies,  of  parliaments 
and  cabinets,  of  federal  and  unitary  states,  and  of  political 
parties  and  party  control.  Many  to  whom  the  Government  of 
Germany  meant  no  more  than  the  person  of  the  Kaiser  were 
initiated  into  the  functions  of  the  Reichstag  and  the  Bundesrat, 
and  were  made  to  understand  how  a  government  can  have  many 
of  the  outward  features  of  a  democracy  and  yet  be  in  its  essen- 
tial character  an  autocracy.  Many  to  whom  the  existence  of 
a  king  as  head  of  the  state  indicated  a  degree  of  autocracy  in 
the  government  came  to  learn  that  constitutional  monarchs  may 
have  so  little  actual  political  authority  as  to  be  no  more  than 
figure  heads,  symbolizing  the  unity  and  traditions  of  the  state, 
but  powerless  to  affect  its  policies.     Parliaments  and  cabinets 


4  POLITICAL  SYSTEMS  IN  TRANSITION 

became  as  familiar  as  a  Congress  and  President,  and  the  rise 
and  fall  of  governments  in  response  to  parliamentary  votes 
of  want  of  confidence  as  natural  an  event  as  the  fixed  terms  of 
our  own  representatives.  Even  the  technicalities  of  party- 
politics  came  to  be  understood  in  some  measure,  and  discussions 
were  common  of  coalition  ministries  and  of  the  radical  and 
moderate  wings  of  republican  and  of  socialist  groups. 

An  opportunity  to  test  democratic  government.  While  the 
war  thus  enlarged  the  range  of  our  political  knowledge,  it  also 
enabled  us  to  make  comparisons  at  every  turn  between  our 
own  and  other  governments,  and  to  estimate  the  value  of  our 
own  institutions  in  the  light  of  the  experience  of  other  nations 
with  different  forms  of  political  organization.  Primarily  we 
matched  democracy  against  autocracy,  both  in  respect  to  the 
ideals  of  each  form  of  government  and  in  respect  to  the  power 
of  each  to  command  the  forces  of  a  united  nation  to  accomplish 
its  purposes.  Were  German  political  ideals,  apart  from  the 
policies  that  were  being  pursued  by  the  German  Government, 
worthy  to  be  compared  with  those  of  the  Allied  powers  ?  How 
far  were  these  ideals  responsible  for  the  practical  unanimity 
with  which  the  German  people  supported  their  government? 
What  was  the  peculiar  character  of  the  political  organization 
which  made  Germany  so  powerful  on  the  field  of  battle?  Was 
that  organization  necessarily  autocratic  or  only  accidentally  so? 
But  while  marking  these  contrasts,  we  at  the  same  time  made 
comparisons  between  the  democratic  nations  themselves,  if  not 
in  respect  to  national  ideals,  at  least  in  respect  to  the  rela- 
tive advantages  and  disadvantages  of  their  particular  forms 
of  democratic  government.  Was  the  cabinet  system  of  gov- 
ernment, which  made  the  executive  department  responsible  to 
the  legislative  and  enabled  the  latter  to  enforce  its  demand  for 
an  efficient  administration,  essentially  better  than  the  system 
of  elected  officials  whose  office  was  secure  until  the  normal 
expiration  of  its  fixed  term?  Was  the  unity  of  government 
which  prevailed  in  Great  Britain  and  France  an  advantage  in 
time  of  war  as  against  the  federal  system  which  prevailed  in 


A  TEST  OF  DEMOCRATIC  GOVERNMENT  5 

the  United  States  and  Germany?  The  answers  to  these  and 
other  questions  were  reached  not  by  theoretical  discussion,  but 
by  the  actual  observation  of  concrete  conditions.  The  public 
at  large  went  to  school,  as  it  were,  in  that  most  valuable  of  all 
training  schools  —  the  experimental  laboratory  of  practical 
politics. 

The  war  a  conflict  of  political  ideals.  The  task  of  the  his- 
torian of  the  World  War  in  attempting  to  estimate  how  far  the 
political  ideals  of  each  state  contributed  to  a  justification  of  its 
objects  in  the  war  and  to  the  creation  of  the  spirit  of  national 
unity  which  it  brought  to  the  support  of  those  objects  will 
not  be  an  easy  one.  It  is  a  simple  solution  to  quote  a  variety 
of  German  authors  and  show  that  the  German  state  was  built 
upon  the  principle  that  the  state  is  the  embodiment  of  force, 
and  that  such  force  or  might  is  its  own  justification  and  may 
be  resorted  to  when  necessary  to  further  national  development. 
On  the  other  hand,  it  can  be  shown  that  both  the  British  and 
the  French  political  traditions  repudiate  any  such  worship  of 
the  state,  and  insist  that  governments  are  bound  by  the  same 
moral  obHgations  by  which  the  individual  citizens  of  the  state 
are  bound.  But  the  issue  lies  much  deeper,  and  no  just  con- 
clusions can  be  reached  by  a  comparison  of  political  ideals 
without  at  the  same  time  taking  into  account  the  economic 
forces  at  work  in  creating  the  rivalry  of  nations.  On  both 
sides  there  had  been  for  a  generation  the  sharpest  competition 
for  the  control  of  foreign  markets  and  of  the  raw  materials  of 
industry.  A  vital  factor  in  the  situation,  moreover,  was  the 
anarchical  character  of  the  whole  international  system,  which 
threw  upon  each  state  the  duty  of  protecting  its  national  rights 
by  its  own  armed  force.  But  while  these  conditions  of  economic 
rivalry  and  of  international  lawlessness  provided  the  motive 
and  the  occasion  for  the  outbreak  of  the  war,  it  nevertheless  re- 
mains true  that  the  political  ideals  of  Germany  played  an  im- 
portant part  in  determining  its  response  to  the  economic  mo- 
tive and  in  leading  it  to  precipitate  the  war  which  international 
law  had  done  too  little  to  prevent.     On  the  other  hand,  while 


6  POLITICAL  SYSTEMS  IN  TRANSITION 

self-defense  was  undoubtedly  the  ulterior  motive  leading  the 
British  Government  to  take  part  in  the  war,  there  is  no  ques- 
tion but  that  the  political  ideals  of  self-government  in  Great 
Britain,  and  the  conception  of  national  morality  as  of  the  same 
value  as  individual  morality,  made  it  possible  for  the  govern- 
ment to  obtain  the  support  of  a  large  part  of  the  body  politic 
which  might  otherwise  have  been  for  the  time  indifferent. 
Those  who  failed  to  see  the  menace  to  Great  Britain  of  a 
triumphant  Germany  responded  to  the  appeal  to  vindicate  their 
pledged  word  to  defend  the  integrity  of  Belgium.  This  con- 
flict of  national  ideals  became  all  the  more  marked  when  the 
proposal  was  made  in  December,  191 6,  that  the  powers  at  war 
should  state  openly  the  terms  upon  which  they  were  ready  to 
conclude  peace.^ 

The  case  of  the  United  States  was  somewhat  different. 
There  was  no  immediate  danger  to  its  territory  in  consequence 
of  a  German  victory  as  in  the  case  of  Great  Britain.  The  pro- 
clamation of  neutrality  in  August,  1914,  was  but  the  expres- 
sion of  the  traditional  attitude  of  the  United  States  towards 
the  wars  of  Europe.  But  the  breach  of  faith  by  Germany  in 
invading  Belgium  and  the  methods  of  military  occupation  by 
which  it  was  accompanied  could  not  but  have  their  effect  in 
awakening  sympathy  for  the  cause  of  the  Allies.  This  sym- 
pathy grew  with  each  month  of  the  war,  but  it  is  doubtful 
whether  it  would  have  been  of  itself  sufficient  to  make  the 
United  States  depart  from  its  neutral  position  had  not  the 
German  Government  committed  direct  wrongs  against  us  and 
forced  a  declaration  of  war.  Once  war  was  declared,  upon 
whatever  technical  grounds,  the  conflict  between  the  two  coun- 
tries became  at  once  a  conflict  of  political  ideals.  "  The  world 
must  be  made  safe  for  democracy."  This  phrase  was  singled 
out  from  the  address  of  the  President  to  Congress  and  became 

1  No  mention  is  made  of  France  because  the  imperative  necessity  of 
self-defense  left  no  room  for  the  influence  of  political  ideals  in  deter- 
mining the  response  of  her  people  to  the  war.  In  Russia  the  unques- 
tioning loyalty  of  the  masses  responded  blindly  to  the  appeal  to  come  to 
the  aid  of  their  Slavic  brethren  in  Serbia. 


A  TEST  OF  DEMOCRATIC  GOVERNMENT  7 

thenceforth,  as  it  were,  the  national  battle  cry.  It  is  doubtful 
whether  many  of  those  who  came  from  factory  and  farm  in  re- 
sponse to  the  call  to  arms  could  have  defined  in  any  precise 
manner  the  meaning  of  those  words;  but  one  and  all  felt  as 
by  instinct  that  they  symbolized  the  vital  issue  between  Ger- 
many and  the  United  States.  The  principles  of  political  free- 
dom which  were  part  of  the  original  inheritance  of  the  United 
States,  and  which  had  taken  shape  in  its  constitution  and  in  its 
legal  traditions,  were  emphasized  and  reiterated  in  order  to 
make  clear  the  contrast  with  the  irresponsible  government  of 
Germany  and  its  autocratic  military  system.  If  the  deeds  of 
the  enemy  were  doubly  evil  because  of  evil  principles  offered 
in  defense  of  them,  then  it  was  of  fundamental  importance  to 
set  forth  the  higher  standard  of  conduct  demanded  by  the 
principles  of  democracy. 

Democracy  and  efficient  government.  If  the  war  involved 
in  principle  a  conflict  of  political  ideals,  it  was  in  actual  reality 
a  conflict  of  organized  peoples.  The  chief  military  lesson  of 
the  war  is  said  to  be  the  fact  that  war  is  no  longer  merely  a 
contest  between  the  armed  forces  of  the  two  states,  but  has 
come  to  be  a  struggle  between  the  citizen  body  of  one  nation 
and  that  of  another.  The  fighting  strength  of  an  army  is  now 
seen  to  depend  upon  the  industrial  resources  of  the  nation, 
upon  the  extent  of  its  food  supplies,  upon  the  directive  ability 
which  can  be  enlisted  to  coordinate  these  materials,  and  upon 
those  moral  qualities  of  the  people  which  determine  the  extent 
of  the  sacrifices  they  will  be  willing  to  make  to  the  cause.  In 
consequence,  the  fundamental  political  problem  raised  by  the 
war  was  the  question  of  the  efficiency  of  a  democratic  govern- 
ment when  faced  with  the  necessity  of  bringing  all  the  forces 
of  the  nation  to  bear  upon  the  single  object  of  overcoming  the 
enemy.  In  times  of  peace  democracy  may  be  willing  to  sacri- 
fice some  measure  of  efficiency  for  the  sake  of  the  moral  ad- 
vantages attaching  to  self-government.  Efficiency  is  not  the 
primary  object  of  government  in  a  democracy.  Law  and 
order  must,  indeed,  be  maintained  and  certain  positive  bene- 


8  POLITICAL  SYSTEMS  IN  TRANSITION 

fits  be  secured  to  the  citizen  body ;  but  democracy  may  well 
be  content  to  put  up  with  a  Hmited  degree  of  mismanagement 
and  extravagance  on  the  part  of  incompetent  officials  for  the 
sake  of  the  educational  advantages  involved  in  the  electoral 
process.  Liberty  and  individual  initiative  are  to  be  regarded 
as  positive  goods,  to  be  given  presumptive  right  of  way  except 
where  there  is  clear  need  of  a  restriction  upon  them  for  the 
common  good.  As  a  result,  democracy,  especially  in  the  United 
States,  has  often  denied  itself  a  fuller  measure  of  the  advan- 
tages of  improved  organization  lest  in  seeking  to  obtain  them 
it  should  unduly  curtail  that  individual  initiative  and  freedom 
of  action  to  which  it  gives  first  place.^ 

Efficiency  in  time  of  war.  But  though  democracy  may  be 
willing  to  sacrifice  efficiency  to  self-government  in  time  of  peace, 
it  cannot  do  so  in  time  of  war.  The  prime  object  of  govern- 
ment is  then  the  preservation  of  the  national  existence  with  all 
that  it  connotes  indirectly  for  the  good  of  the  individual  citi- 
zen. For  the  sake  of  this  high  purpose  it  may  be  necessary 
to  subordinate  democracy  to  efficiency  and  to  suspend  tem- 
porarily those  very  principles  of  liberty  in  the  individual  which 
the  war  is  fought  to  maintain  for  the  nation  as  a  whole.  The 
question  thus  arises :  how  did  democracy  compare  with  autoc- 
racy in  meeting  the  problem  of  organizing  the  nation  and 
forcing  its  citizen  body  to  do  that  which  they  were  not  ac- 
customed by  long  training  to  do?  Was  the  transition  from  a 
government  in  which  the  principles  of  democracy  had  prior- 
ity to  one  in  which  efficiency  had  priority  accomplished  with- 
out serious  loss?  If  autocracy  had  an  advantage  in  respect  to 
preparation  and  rapidity  of  attack,  was  this  initial  advantage 
overcome  in  due  time  by  democracy  exhibiting  greater  stay- 

1  It  will  not  be  inferred,  of  course,  that  it  is  not  possible  to  secure 
greater  efficiency  in  the  government  of  a  democracy  without  loss  of 
liberty.  Much  of  the  wastefulness  and  inefficiency  in  American  gov- 
ernment is  due  to  indifference  on  the  part  of  the  public  and  to  lack 
of  energy  in  seeking  an  improved  system.  A  public  indifferent  to  the 
acts  of  its  elected  officials  may  be  in  actual  fact  as  little  self-governing 
as  a  community  governed  by  the  appointees  of  a  czar. 


A  TEST  OF  DEMOCRATIC  GOVERNMENT         9 

ing  qualities  in  its  people?  In  respect  to  the  organization  of 
government  as  a  fighting  machine,  what  special  difficulties  con- 
fronted the  United  States  at  its  entrance  into  the  war  by  reason 
of  its  more  rigid  and  decentralized  from  of  constitutional  gov- 
ernment? Were  these  difficulties  as  great,  or  greater,  in  the 
case  of  Great  Britain  with  its  unitary  parliament  and  cabinet 
form  of  government?  What  changes  were  effected  in  the 
Government  of  the  United  States  to  enable  it  to  meet  the  de- 
mands of  the  war  in  a  more  adequate  manner? 

Value  of  the  tests  of  war  for  the  work  of  reconstruction. 
The  answers  to  these  and  other  questions  raised  in  the  attempt 
of  a  democratic  government  to  adapt  itself  to  a  war  of  ex- 
haustion will  throw  much  light  Upon  the  inherent  strength  and 
weaknesses  of  the  American  Government,  and  will  enable  us  to 
distinguish  between  what  is  of  permanent  and  intrinsic  value  in 
our  form  of  government  and  the  accidental  corruption  and  mis- 
management which  have  at  times  accompanied  its  practical 
working.  We  shall  find  that  in  some  respects  our  ideals  them- 
selves have  been  enlarged  by  the  war  and  that  in  other  respects 
they  have  been,  temporarily  it  is  to  be  hoped,  contracted.  Parts 
of  the  machinery  of  our  government  will  be  found  to  have 
worked  with  a  degree  of  smoothness  and  power  which  is  above 
criticism;  while  other  parts  have  exhibited  defects  which  it  is 
important  for  us  to  remedy.  Is  it  possible  to  attain  greater 
efficiency  in  our  government  without  sacrifice  of  those  ele- 
ments of  democracy  which  are  indispensable?  In  attempting 
to  view  all  sides  of  the  question  the  experience  of  other  gov- 
ernments has  been  drawn  upon  in  the  following  pages  wher- 
ever the  problem  involved  was  one  common  to  all  states. 
Even  in  their  downfall  the  states  of  Germany,  Austria-Hun- 
gary, and  Russia  offer  valuable  material  for  comparison.  The 
experience  of  Great  Britain  in  particular,  as  being  most  nearly 
like  the  United  States  in  its  political  traditions  and  indus- 
trial organzation,  has  been  described  at  some  length,  and  it 
will  be  found  that  there  is  much  in  common  in  the  problems 
confronting  the  two  countries.    The  period  of  reconstruction 


lo        POLITICAL  SYSTEMS  IN  TRANSITION 

which  we  have  now  entered  upon  is  making  demands  upon  us 
to  prove  the  value  of  our  cherished  traditions.  Such  of  them 
as  cannot  meet  the  needs  of  the  new  era  must  be  discarded  as 
outworn.  In  this  delicate  task  of  breaking  here  and  there  with 
the  customs  of  the  past,  the  lessons  of  the  war  will  do  much 
to  guide  us  in  reaching  a  sound  decision. 


CHAPTER  II 

THE   CONSTITUTIONS    OF   THE    GREAT    NATIONS    ON    THE   EVE   OF 
THE  WORLD  WAR 

Political  theory  a  part  of  the  constitution.  It  is  clear  from 
the  questions  raised  in  the  preceding  chapter  that  we  should 
be  missing  one  of  the  chief  lessons  of  the  war  for  the  develop- 
ment of  political  institutions  if  we  were  to  confine  our  attention 
merely  to  the  structural  changes  which  it  brought  about  in  the 
governments  that  were  involved  in  it.  It  needs  only  a  super- 
ficial study  of  the  problem  of  government  to  observe  that  a 
government  is  something  more  than  the  mere  organization  of 
the  departments  or  bodies  through  which  laws  are  enacted  and 
carried  into  eflFect.  As  a  recent  writer  has  said :  "  It  is  of  the 
essence  of  all  conscious  government  that  its  structure  is  planned 
or  contrived  on  some  theory  of  operation,  or  again  involves 
some  theory  as  to  the  nature  of  man  and  the  nature  of  govern- 
Tnent."  ^  In  consequence  it  is  a  common  admonition  that  the 
institutions  of  a  country  must  be  studied  in  the  light  of  the 
political  principles  upon  which  they  were  founded  and  the 
traditions  which  have  guided  their  development.  According 
to  the  spirit  that  animates  them  the  same  set  of  political  insti- 
tutions may  be  an  instrument  of  freedom  in  one  country  and  an 
instrument  of  oppression  in  another.  A  government  founded 
upon  principles  of  democracy  may,  indeed,  at  times  lose  sight  of 
those  principles  in  the  turmoil  of  party  conflicts  to  which  pop- 
ular government  at  times  gives  rise ;  it  may  be  forced  frankly 
to  abandon  some  of  them  in  time  of  great  emergency ;  but  the 
constant  presence  of  those  principles  in  the  background  of  the 
political  life  of  the  country  protects  the  people  against  a  per- 
manent encroachment  upon  their  liberties,  and  insures  a  re- 

1  A.  G.  Sedgwick,  "  The  Democratic  Mistake,"  p.  30. 

n 


12         POLITICAL  SYSTEMS  IN  TRANSITION 

turn  to  normal  constitutional  relations  when  the  exceptional 
conditions  disappear.  This  recognition  of  political  theory  as 
a  part  of  the  constitution  is  particularly  important  in  the  United 
States,  whose  government  was  built  up  upon  complex  founda- 
tions deliberately  planned  in  order  to  meet  abstract  concep- 
tions as  well  as  concrete  conditions.  In  the  following  sketch 
of  the  constitutions  of  the  United  States,  Great  Britain,  France, 
Germany,  and  Russia,  it  will  be  possible  to  present  only  the 
dominant  principles  underlying  their  constitutions,  with  refer- 
ence in  each  instance  to  those  which  were  more  directly  affected 
by  the  changes  brought  about  by  the  war. 

Individual  character  of  democracy  in  different  countries. 
The  individual  character  of  the  theory  of  democracy  in  the 
United  States  and  in  the  leading  states  of  Europe  is  as  marked 
as  is  the  individuality  of  their  divergent  forms  of  government. 
Each  nation  has  seen  the  light  from  its  own  point  of  vantage 
and  has  struggled  towards  it  by  methods  dictated  by  its  own 
distinct  national  traits.  The  unity  of  purpose  and  of  action 
which  dominated  the  governments  of  the  Allied  powers  during 
the  last  year  of  the  conflict  was  interpreted  by  many  as  in- 
dicating a  close  similarity  of  national  ideals.  A  war  of  de- 
mocracy against  autocracy  seemed  to  imply  a  common  concep- 
tion of  democracy  among  its  champions.  But  in  the  year  that 
has  elapsed  since  the  signing  of  the  armistice  it  has  become  more 
evident  that  national  characteristics  have  been  but  little  changed, 
and  that  each  of  the  nations  will  continue  to  work  out  its  own 
conception  of  free  government  in  accordance  with  its  historic 
traditions.^  The  reconciliation  between  freedom  and  law,  be- 
tween individual  rights  and  justice,  which  marks  the  triumph 
of  modern  democratic  government,  is  not  to  be  brought  about 
by  imposing  upon  one  country  the  political  institutions  of  an- 
other. Freedom  is  a  relative  term,  and  must  be  judged  in  the 
light  of  the  aspirations  of  a  particular  people.  Law  is  an 
artificial  restraint  which  has  developed  into  a  highly  complex 

1  The  point  is  developed  in  detail  in  a  recent  volume  on  *'  Recon- 
struction and  National  Life,"  by  C.  F.  Lavell. 


ON  THE  EVE  OF  THE  WORLD  WAR    13 

system  adjusted  to  the  needs  of  each  country  by  the  traditions 
of  centuries.  Individual  rights  and  general  justice  must  be 
viewed  in  the  light  of  changing  economic  conditions  as  well  as 
of  political  status.  But  while  this  individuality  of  national  de- 
velopment is  an  undoubted  fact,  it  is  also  true  that  the  ex- 
perience of  one  country  in  meeting  its  own  peculiar  problems 
may  be  of  great  service  to  another.  American  democracy  has 
its  weaknesses  as  well  as  its  strength ;  and  while  it  held  aloft  the 
torch  of  free  government  to  Europe  during  the  nineteenth  cen- 
tury, it  has  lessons  of  its  own  to  learn  from  the  Europe  of  the 
twentieth  century.  A  wise  conservatism  will  be  led  by  the  suc- 
cess of  new  methods  in  other  countries  to  consider  a  like  reform 
in  its  own  government;  a  wise  radicalism  will  be  led  by  the 
failure  of  new  methods  in  other  countries  to  question  the  prac- 
tical worth  of  similar  proposals  of  its  own.  These  comparisons 
between  the  democracy  of  the  old  world  and  that  of  the  new 
came  to  have  greater  value  when  the  rigorous  test  of  the  war 
revealed  flaws  in  the  machinery  of  the  several  governments 
which  might  otherwise  have  remained  unnoticed.  It  will  help 
us,  therefore,  to  interpret  the  characteristic  features  of  Ameri- 
can democracy  and  to  understand  the  significance  of  the 
changes  in  its  political  institutions  made  necessary  by  the  war, 
if,  within  the  limits  of  space  allowed,  the  underlying  principles 
of  government  in  the  leading  countries  be  placed  in  contrast, 
both  in  respect  to  the  theory  involved  and  in  respect  to  the 
practical  application  of  the  theory  in  the  working  machinery  of 
the  state. 

Theory  of  democracy  in  the  United  States.  Looking  first 
at  democracy  as  a  theory,  distinct  from  the  form  of  poUtical 
organization  by  which  its  adherents  sought  to  give  expression  to 
that  ideal,  we  may,  at  the  risk  of  covering  familiar  ground, 
point  out  some  of  the  more  fundamental  principles  by  which 
the  people  of  the  United  States  have  been  guided  in  the  course 
of  their  development  down  to  the  eve  of  the  World  War. 
When  the  American  colonies  found  themselves  faced  with  the 
necessity  of  justifying  the  radical  action  they  were  taking  in 


14        POLITICAL  SYSTEMS  IN  TRANSITION 

# 
separating  themselves  from  their  mother  country  they  put  forth 
a  document  which  was  destined  to  mark  a  new  epoch  in  the 
history  of  democratic  government.  The  Declaration  of  Inde- 
pendence of  1776  contained  a  theory  of  government  which  has 
become  such  a  commonplace  in  the  modern  world  that  it  is  dif- 
ficult for  us  to  realize  that  it  could  have  ever  been  considered 
a  radical  doctrine.  Governments  are  instituted  among  men  in 
order  to  secure  certain  unalienable  rights  with  which  men  are 
endowed  by  their  Creator  and  which  therefore  belong  to  men 
prior  to  the  establishment  of  governments.  In  consequence 
governments  derive  their  just  powers  only  from  the  consent 
of  the  governed. 

Self-government  of  citizens  and  self-determination  of 
groups.  Two  distinct  political  principles  are  here  involved: 
in  the  first  place  self-government  is  asserted  as  a  right  belong- 
ing to  the  citizens  of  the  State  as  such.  Good  government  had 
long  been  recognized,  by  political  writers  of  every  school,  as 
an  inherent  right  of  man ;  but  good  government  did  not  neces- 
sarily imply  government  by  rulers  of  one's  own  choice. 
Underlying  this  right  of  self-government  is  the  theory  that 
the  relationship  belfween  the  members  of  the  State  and  their 
Government  is  purely  contractual.  Governments  are  the  agents 
of  the  people  for  the  performance  of  the  functions  of  govern- 
ment, and  only  in  so  far  as  they  fulfil  the  duties  assigned  to 
them  have  they  any  claim  upon  the  support  of  the  people. 
From  another  point  of  view  governments  are  trustees  to  whom 
the  public  welfare  and  the  public  funds  have  been  entrusted, 
to  be  administered  for  the  benefit  of  the  citizens  at  large.^ 

In  the  second  place  the  Declaration  of  Independence  asserted 
the  principle  that  not  only  may  the  people  of  the  State  as  an 
entirety   change  their  agents  of   government,   but  a  definite 

1  These  ideas  were,  indeed,  not  new  ones,  even  in  1776;  they  had 
been  clearly  stated  by  the  philosopher  Locke  in  1690  and  by  Milton  and 
others  before  him;  but  they  did  not  become  a  practical  program  of 
political  action  until  the  former  colonies,  by  successful  revolution, 
won  their  admission  into  the  family  of  nations. 


ON  THE  EVE  OF  THE  WORLD  WAR     15 

group  or  community  of  people  may,  under  certain  circum- 
stances, sever  themselves  from  the  larger  State  of  which  they 
constitute  a  part.  This  latter  principle  followed  as  a  logical 
corollary  of  the  former,  and  it  offered  a  new  theoretical  justi- 
fication for  the  age-old  struggle  of  nationalities  for  an  inde- 
pendent statehood.  The  world  had  long  been  familiar  with 
the  claim  of  national  groups  to  freedom  from  foreign  aggres- 
sion, and  the  moral  right  of  revolution  in  such  cases  had  been 
freely  asserted  by  philosophers  and  statesmen.  The  new  dec- 
laration announced  to  rulers  that  self-government  was  so  far 
the  right  of  man  that  even  colonies  which  were  of  the  same 
blood  and  language  as  the  mother  country  and  whose  legal 
traditions  were  the  same  might  throw  oif  the  government  of 
the  mother  country  and  set  up  a  separate  government  of  their 
own.  The  conditions  justifying  such  action  were  clearly  set 
forth.  Whenever  any  form  of  government  becomes  destruc- 
tive of  the  ends  for  which  it  was  instituted,  "  it  is  the  right 
of  the  People  to  alter  or  to  abolish  it,  and  to  institute  new 
Government "  for  the  better  attainment  of  those  ends.  Natur- 
ally such  a  change  of  governments  should  not  be  made  "  for 
light  and  transient  causes,"  but  as  an  alternative  to  continued 
misgovernment  it  became  not  only  a  right  but  a  duty. 

Development  of  the  democratic  theory.  The  Declaration 
of  Independence  was  a  document  of  revolution.  Taken  apart 
from  the  immediate  purpose  which  those  who  issued  it  had 
in  mind,  it  set  forth  a  theory  of  equality  which  was  susceptible 
of  the  most  radical  interpretation,  and  conservative  statesmen 
looked  with  suspicion  upon  what  they  feared  might  be  the 
dawn  of  an  age  of  anarchy.  In  some  respects  the  Revolution 
was  not  so  much  a  war  between  the  colonies  and  the  mother 
country  as  a  struggle  between  classes  of  society.  For  many 
of  the  separate  governments  under  which  the  colonists  had 
been  living  were  far  from  being  based  upon  an  equality  of 
political  privileges  or  an  equality  of  economic  opportunity. 
Not  a  few,  therefore,  of  the  leaders  who  gave  the  Declaration 
their  support  as  a  program  of  political  action  against  Great 


i6        POLITICAL  SYSTEMS  IN  TRANSITION 

Britain  did  not  consider  themselves  inconsistent  in  endeavor- 
ing to  maintain  a  limited  suffrage  based  upon  property  qualifi- 
cations and  in  seeking  to  keep  the  reins  of  government  in  the 
hands  of  the  old  aristocracy  in  control  before  the  Revolution. 
Owners  of  slaves  rejected  -altogether  the  application  of  the 
theory  to  those  whom  they  held  at  law  to  be  not  persons  but 
property.  The  reaction  against  ultra-democratic  theory  be- 
came all  the  more  marked  when  the  conditions  following  the 
Revolution  gave  evidence  of  the  excesses  to  which  the  new 
doctrines  were  leading  in  many  quarters.  But  as  decade  suc- 
ceeded decade  the  idea  of  popular  government  strengthened 
its  hold  upon  the  country  and  the  forces  of  conservatism 
were  driven  more  and  more  into  the  background.  The  opening 
up  of  the  public  lands  to  settlement  in  the  Middle  West  led 
naturally  to  the  breakdown  of  the  property  restrictions  placed 
upon  suffrage  in  some  of  the  older  eastern  States,  and  the 
triumph  of  Jacksonian  democracy  in  1828  soon  disposed  of  the 
tradition  that  the  exercise  of  political  power  was  the  preroga- 
tive of  an  exclusive  group  of  the  educated  and  propertied 
classes.  The  close  of  the  Civil  War  showed  the  progress  that 
had  been  made.  The  Gettysburg  address  reaffirmed  the  ideal 
of  "  government  of  the  people,  by  the  people,  and  for  the  peo- 
ple"; the  13th  Amendment  to  the  Constitution  wiped  out  the 
anachronism  of  a  subject  race;  while  the  14th  Amendment  se- 
cured the  predominance  of  National  citizenship  over  State 
citizenship,  and  placed  the  protection  of  the  fundamental 
rights  of  life,  liberty,  and  property  under  the  control  of  the 
Federal  Government.  One  outstanding  issue  still  remained  un- 
settled on  the  eve  of  the  World  War.  Is  the  suffrage  by 
which  the  law  is  made  and  policies  are  determined  to  be  con- 
sidered as  a  right  or  as  a  privilege  of  citizenship?  And  if  a 
privilege  of  citizenship,  is  the  discrimination  against  sex,  irre- 
spective of  qualifications  or  of  consent,  compatible  with  the 
theory  of  equality  which  lies  at  the  foundations  of  democracy? 
Moral  character  of  the  democratic  state.  The  theory  that 
governments  are  but  the  agents  of  the  people  and  are  instituted 


ON  THE  EVE  OF  THE  WORLD  WAR    \^ 

to  secure  certain  rights  not  possessed  by  the  people  as  a  gift 
from  the  government,  but  held  by  them  prior  to  its  creation, 
has  as  its  corollary  the  principle  that  the  State,  of  which  the 
government  is  but  the  outward  expression,  exists  not  for 
itself  but  for  the  benefit  of  the  individuals  who  compose  it. 
The  sole  aim  and  object  of  the  State  is  to  act  as  a  means  by 
which  the  citizen  body  may  obtain  for  themselves  collectively 
and  individually  certain  definite  advantages  not  otherwise 
within  their  reach.  Hence  the  personality  which  the  State  pos- 
sesses cannot  endow  it  with  attributes  which  are  contrary  to 
the  welfare  of  the  individual  units  who  compose  the  body 
politic.  What  rights,  therefore,  the  State  may  claim,  it  claims 
m.erely  as  the  trustee  of  the  rights  of  the  people  as  an  organ- 
ized group,  and  at  the  same  time  it  must  assume  the  obliga- 
tions incumbent  upon  its  members  in  the  same  capacity.  In 
consequence  it  has  always  been  part  of  the  American  theory 
of  democracy  that  the  same  moral  code  which  was  accepted 
by  the  citizen  body  as  individuals  should  be  binding  upon  the 
State  as  a  whole,  so  that,  for  example,  a  treaty  made  by  the 
Government  with  a  foreign  State  should  be  judged  by  the  same 
standard  and  be  regarded  as  of  the  same  binding  force  as  a 
contract  of  a  similar  nature  between  two  citizens.  Doubtless 
this  belief  in  the  identity  of  the  moral  standards  applicable 
to  the  conduct  of  the  State  and  of  individuals  has  been  rather 
a  subconscious  inference  from  the  general  theory  of  democratic 
government  than  a  definitely  formulated  rule  of  conduct;  and 
no  one  would  claim  that  the  actual  foreign  policies  of  the 
nation  have  always  conformed  to  that  ideal.  But  within  these 
limitations  it  still  remains  true  that  no  justification  for  the 
evasion  of  its  obligations  would  conceivably  be  offered  by  the 
American  Government  which  denied  the  obligation  of  the  State 
to  be  bound  by  the  rules  of  individual  moral  conduct.^ 

^The  point  is  strikingly  developed  in  an  address  of  Senator  *Root 
before  the  Senate  in  favor  of  the  repeal  of  the  exemption  of  American 
coastwise  vessels  from  payment  of  tolls  for  the  use  of  the  Panama 
Canal.    The   obligations   of   honor   in   a  democracy  are   set  forth  as 


i8        POLITICAL  SYSTEMS  IN  TRANSITION 

American  political  institutions.  Turning  from  the  discus- 
sion of  American  democracy  in  its  aspects  as  a  political  ideal 
to  the  machinery  of  government  which  has  been  created  in 
the  attempt  to  realize  that  ideal,  we  find  ourselves  in  the  pres- 
entee of  complex  institutions  which  at  first  sight  seem  incon- 
sistent with  the  fundamental  principles  expressed  in  the  Decla- 
ration of  Independence.  The  simple  faith  in  democracy  which 
characterizes  the  great  document  of  revolution  is  seen  to  be 
limited  and  restrained  by  the  organization  through  which  it  was 
made  a  livirtg  reality.  These  limitations  and  restraints  were 
primarily  due,  in  so  far  as  the  United  States  as  a  whole  is 
concerned,  to  the  difficulty  of  creating  a  Federal  State  which 
should  at  the  same  time  represent  the  *'  more  perfect  union  " 
believed  necess'ary  in  1787,  and  yet  not  encroach  more  than 
was  necessary  upon  the  local  self-governing  powers  of  the 
several  States.  They  were  also  due  to  the  formal  character 
of  the  written  document  in  which  the  agreement  of  federation 
was  drawn  up ;  and  again  they  were  due  to  the  complex  nature 
of  the  agencies  provided  for  the  Federal  Government.  It  has 
long  been  held  by  many  critics  that  these  limitations  and  re- 
strictions have  in  part  outworn  their  usefulness,  and  have 
ceased  to  be  suited  to  the  conditions  and  needs  of  a  later  gen- 
eration. This  belief  has  acquired  new  strength  as  a  result 
of  the  severe  test  through  which  the  Federal  Government  was 
put  during  the  war.  The  nature  of  this  test  we  shall  see  in  a 
subsequent  chapter.  We  may  here  briefly  examine  the 
machinery  to  which  the  test  was  applied. 

The  powers  of  the  Federal  Government.  The  division  of 
power  between  the  "  Union  "  and  the  States  was  not  made  in 
accordance  with  an  abstract  theory  of  government,  but  in  re- 
sponse to  the  imperative  demands  of  the  times.  The  States 
which  had  made  but  slight  concessions  of  governing  power  to 
the  central  Congress  under  the  earlier  Articles  of  Confedera- 
tion found  from  stern  experience  that  a   fuller  measure  of 

overweighing  the  material  losses  involved.    **  Addresses  on  International 
Subjects,"  p.  207. 


ON  THE  EVE  OF  THE  WORLD  WAR    19 

power  must  be  granted  if  the  principle  of  unity  was  to  prevail 
against  the  centrifugal  forces  of  the  thirteen  States  each  re- 
taining "  its  sovereignty,  freedom,  and  independence."  The 
delegation  of  power  by  the  separate  States  to  the  government 
of  the  Union  was  made  reluctantly,  not  generously.  The 
Federal  Government  was  entrusted  with  power  over  matters 
in  which  unity  of  action  was  deemed  essential,  and  among  them 
the  power  to  declare  war  and  to  raise  and  support  armies ;  while 
on  the  other  hand  the  States  retained  the  powers  of  local  self- 
government  and  in  general  all  other  powers  not  expressly  or 
impliedly  delegated  to  the  central  Federal  Government. 
Little  more  was  conceded  than  the  minimum  regarded  as  neces- 
sary to  overcome  the  defects  of  the  existing  confederation,  al- 
though that  minimum  did,  as  the  event  proved,  constitute  the 
foundation  of  what  was  ultimately  to  become  a  single  national 
State.  For  whatever  was  the  original  intention  of  the  framers 
of  the  Constitution  and  of  the  State  conventions  which  ratified 
it,  time  and  the  inevitable  demands  of  territorial  expansion  led 
the  government  of  the  Union  to  assume  an  ever-widening 
power.  Formal  amendments  had  been  provided  for,  but  it  was 
not  foreseen  that  no  document  can  be  so  rigid  as  to  resist  the 
informal  amendments  imposed  by  a  growing  nation.  Nor  was 
it  foreseen  that  the  delays  incident  to  the  amending  process, 
while  of  value  in  normal  times  in  securing  the  necessary  de- 
liberation upon  the  questions  at  issue,  might  prove  a  serious 
obstacle  to  the  protection  of  the  nation  in  cases  where  prompt 
action  was  essential.  The  crisis  of  secession  called  for  the 
assumption  by  the  Federal  Government  of  powers  which  the 
letter  of  the  Constitution  completely  failed  to  justify;  but  the 
urgent  needs  of  the  situation  silenced  the  dissenting  voices,  and 
the  Federal  Government  vindicated  its  self-conferred  author- 
ity. The  years  succeeding  the  Civil  War  were  years  of  unpre- 
cedented industrial  growth,  and  the  boundaries  of  local  state 
Government  were  crossed  at  every  point  by  the  highways  of 
commercial  and  social  intercourse.  Gradually  the  Federal 
Government  enlarged  its  control,  though  still  keeping  within 


20         POLITICAL  SYSTEMS  IN  TRANSITION 

the  letter  of  the  Constitution.  Then  again,  the  outbreak  of 
a  war  calling  for  the  concentration  of  the  resources  of  the 
entire  nation  became  the  occasion  for  the  extension  of  the 
range  of  federal  authority  beyond  bounds  hitherto  imagined. 
The  nature  of  a  written  constitution.  Restrictions  upon 
the  agents  of  government.  Both  in  the  case  of  the  Federal 
Government  and  of  the  separate  component  States  the  origin 
and  legal  character  of  the  agencies  of  government  are  to  be 
found  in  a  definite  document  adopted  by  the  people  as  the 
foundation  of  their  political  organization.  These  written  con- 
stitutions, being  the  first  of  their  kind  in  modern  history,  have 
had  an  influence  far  beyond  the  borders  of  the  country  in  which 
they  originated.  They  represent  the  conscious  attempt  of 
democracy  not  only  to  provide  for  itself  a  specific  form  of 
government,  but  to  place  restrictions  both  upon  its  own  agents 
of  government  and  upon  the  normal  majorities  by  which  elec- 
tions are  won  and  policies  dictated.  With  respect  to  the 
agencies  of  government  the  function  of  a  constitution  is  not 
only  to  give  stability  to  the  organization  of  the  government,  by 
making  it  a  matter  of  considerable  delay  before  changes  can 
be  effected,  but  to  keep  the  officers  of  the  government,  when 
exercising  their  functions,  within  the  particular  field  assigned 
to  them.  The  framers  of  our  early  constitutions  were  familiar 
with  the  human  weakness  which  leads  Uhose  who  have  power 
to  seek  to  acquire  more.  They  therefore  believed  that  the  con- 
trol over  the  agents  of  government  by  means  of  regular  elec- 
tions was  not  sufficient,  and  they  sought  to  restrain  them  by 
placing  a  definite  limitation  upon  their  activities.  The  idea  is 
best  expressed  in  the  oft-quoted  statement  from  the  Massacliu- 
setts  Constitution  of  1780,  that  the  object  to  be  attained  was 
"  a  government  of  laws  not  of  men."  This  means  that  no  act 
of  an  officer  of  the  government  is  valid  unless  it  can  be  justified 
by  a  general  or  specific  authority  conferred  upon  such  officer 
by  the  constitution.  The  decision  in  a  given  instance  whether 
the  legislative  and  executive  agents  of  the  government  have 
exceeded  the  powers  conferred  upon  them  by  the  constitution 


ON  THE  EVE  OF  THE  WORLD  WAR    21 

is,  in  the  United  States,  entrusted  to  the  judicial  department 
of  the  government. 

*'  The  principle  of  checks  and  balances.  But  the  unique 
feature  of  the  Federal  Constitution  which  gives  it  perhaps  its 
distinctive  character  among  other  constitutions  is  the  provision 
which  it  makes  for  "  checks  and  balances  "  in  the  organization 
of  the  government.  This  principle,  while  introduced  by  con- 
servative members  of  the  Constitutional  Convention  of  1787 
as  a  means  of  offsetting  the  dangers  of  a  turbulent  and  fickle 
democracy,  was  accepted  by  radicals  as  promising  to  prove  an 
equal  protection  against  autocratic  control.  In  accordance 
with  it,  the  Convention  assigned  the  distinct  functions  of 
government,  legislative,  executive,  and  judicial,  to  separate  de- 
partments, each  acting  to  a  greater  or  less  degree  independently 
of  the  other.  By  dividing  the  legislature  into  two  houses  of 
unequal  terms  of  two  and  six  years,  by  electing  one-third  of 
the  members  of  the  Senate  every  two  years,  by  making  the 
President  independent  of  Congress  and  providing  a  term  of 
office  equal  to  two  terms  of  the  lower  house,  and  by  creating 
an  appointive  judiciary  empowered  to  interpret  the  Constitu- 
tion and  the  laws  made  in  pursuance  of  it,  the  Constitution 
makes  it  practically  impossible  to  bring  about  any  sudden  change 
in  the  policies  of  the  Government.^  The  hasty  and  ill-consid- 
ered demands  of  even  a  majority  of  the  electorate  cannot  at 
once  be  registered  as  laws  if  opposed  by  a  determined  minority. 
It  is  true  that  the  separation  of  the  powers  of  government  is 
not  complete:  the  President  is  given  a  veto  over  legislation  as 
well  as  the  right  to  recommend  measures  for  adoption.  Con- 
gress may  not  only  make  laws  but  may  prescribe  regulations 
for  the  administrative  departments  through  which  the  Presi- 
dent enforces  the  laws,  and  the  Senate  can  withhold  its  con- 
sent from  appointments  to  office  made  by  the  President.     But 

^An  excellent  illustration  of  the  effect  of  different  terms  of  office 
for  different  bodies  is  to  be  seen  in  the  continuance  in  office  of  Presi- 
dent Wilson  after  his  policies  had  by  implication  (as  far  as  can  be 
judged  from  so  doubtful  a  procedure  as  an  election  in  which  numer- 
ous issues  were  involved)  been  repudiated  in  the  elections  of  1918. 


22         POLITICAL  SYSTEMS  IN  TRANSITION 

with  these  and  other  lesser  exceptions,  designed  to  emphasize 
the  primary  check  obtained  by  separation,  the  departments  per- 
form their  appointed  functions  each  independently  of  the 
other. 

Criticism  of  the  principle.  The  principle  of  checks  and 
balances  as  exemplified  in  the  Constitution  of  the  United  States 
was  an  object  of  criticism  long  before  the  crisis  of  the  war 
called  it  more  seriously  into  question.  Few,  indeed,  of  those 
who  still  had  faith  in  it  would  go  so  far  as  to  say  with  Madison 
that  "  the  accumulation  of  all  powers,  legislative,  executive  and 
judiciary,  in  the  same  hands,  whether  of  one,  a  few,  or  of  many, 
and  whether  hereditary,  self-appointed,  or  elective,  may  justly 
be  pronounced  the  very  definition  of  tyranny."  ^  It  was  gen- 
erally recognized  that  popular  control  over  the  government 
could  be  rendered  sufficiently  effective  to  prevent  tyranny  or 
oppression  even  where,  as  in  the  case  of  parliamentary  govern- 
ment through  a  responsible  body  of  ministers,  the  powers  of 
government  are  unified  under  a  single  contr-ol.  With  democracy 
firmly  seated  in  the  saddle,  as  it  was  by  the  close  of  the  nine- 
teenth century,  why  should  a  system  be  perpetuated  which  tended 
to  prevent  democracy  from  accomplishing  its  own  will  promptly 
instead  of  after  self-imposed  delays.  With  both  President  and 
Congress  subject  to  the  same  popular  control,  why  should  they 
be  forced  to  work  more  or  less  in  isolation  when  efficiency 
clearly  called  for  cooperation?  Why  should  administrative 
departments  perform  their  duties  under  rules  prescribed  by 
Congress,  but  be  responsible  to  the  President  for  the  effective 
discharge  of  their  duties.  Why  should  Congress  appropriate 
money  and  prescribe  regulations  for  the  departments  with- 
out being  obliged  first  to  obtain  a  proper  understanding  of  the 
needs  of  the  departments  ?  Obviously  there  was  no  advantage 
in  continuing  a  system  which  divided  responsibility  and  created 
duplications  of  functions  and  consequent  friction  and  confu- 
sion. Here  again  the  war  opened  the  eyes  of  the  public  to  an 
understanding  of  conditions  which  for  want  of  an  impressive 

1 "  The  Federalist,"  No.  47- 


ON  THE  EVE  OF  THE  WORLD  WAR    23 

lesson  had  been  allowed  to  continue  much  too  long.  It  was 
one  thing  to  accept  inefficiency  as  an  inconvenient  result  of  a 
system  of  government  which  had  been  in  operation  so  long  that 
it  was  easier  to  continue  with  it  at  some  additional  cost  than  to 
undertake  the  necessary  changes;  it  was  quite  another  thing 
to  find  that  in  the  presence  of  the  demands  of  a  World  War 
inefficiency  was  in  a  sense  constitutionally  imposed  upon 
us. 

The  protection  of  individual  rights.  Both  the  Federal 
Constitution  and  the  separate  state  Constitutions  contain 
guarantees  that  certain  fundamental  rights  of  the  citizen  body 
shall  not  be  encroached  upon  by  the  Government.  In  respect 
to  the  legal  effect  of  these  guarantees  it  need  only  be  observed 
that  their  purpose  was  to  prevent  arbitrary  action  by  the  officers 
of  the  Government,  not  to  permit  the  unrestricted  enjoyment 
of  those  rights  contrary  to  the  welfare  of  the  people  as  a 
whole.  The  purpose  of  the  guarantee  of  freedom  of  speech 
and  of  the  press  was  not  to  make  possible  a  license  in  the  ex- 
pression of  opinions  which  might  be  hurtful  either  to  indi- 
viduals or  to  the  public  at  large.  The  5th  and  14th  amend- 
ments to  the  Federal  Constitution,  requiring  of  both  the  federal 
and  the  several  state  governments  that  "  due  process  of  law  " 
shall  be  followed  in  any  proceeding  against  the  life,  liberty, 
or  property  of  an  individual,  are  a  standing  check  upon  arbi- 
trary governmental  action ;  but  in  neither  case  do  they  prevent 
the  passage  of  laws  by  which  both  liberty  and  property  are 
subjected  to  restrictions  for  the  common  good.  The  guarantees 
are,  therefore,  not  absolute  but  qualified,  and  the  extent  of 
their  enjoyment  must  be  determined  in  the  individual  case  by 
balancing  the  presumptive  right  of  the  individual  against  the 
possible  injury  to  others.  In  times  of  peace  this  issue  is 
frequently  raised  in  connection  with  the  exercise  by  the  State 
of  its  "  police  power  "  to  protect  the  public  welfare.  In  time 
of  war  the  issue  becomes  one  of  denying  individual  rights 
where  their  exercise  might  endanger  the  safety  of  the  State. 
Wliether  in  the  recent  war  the  restrictions  imposed  were  in  ex- 


24         POLITICAL  SYSTEMS  IN  TRANSITION 

cess  of  the  need  is  a  question  to  be  answered  in  a  subsequent 
chapter.^ 

Similarity  of  war  problems  in  Great  Britain  and  in  the 
United  States.  Many  of  the  problems  with  which  the  United 
States  was  confronted  as  the  result  of  its  entrance  into  the 
war,  both  in  respect  to  the  organization  of  its  government  and 
in  respect  to  the  relation  of  the  individual  to  the  State,  were 
closely  paralleled  by  similar  problems  in  Great  Britain.  To  a 
large  extent  the  traditions  of  free  government  in  the  United 
States  are  an  inheritance  from  the  former  niother  country. 
New  shoots  have  been  engrafted  upon  the  original  stock,  new 
applications  have  been  made  of  old  principles,  but  the  funda- 
mental conceptions  of  freedom  and  justice  in  both  countries 
have  remained  largely  the  same.  Due  to  external  conditions 
of  colonial  settlement  and  of  national  expansion  the  United 
States  has  dej>arted  widely  from  the  original  model  in  respect 
to  the  organization  of  its  government;  but  even  here  there  are 
points  of  mutual  contact.  In  consequence,  the  experience  of 
Great  Britain  in -adjusting  its  political  principles  and  its  govern- 
mental machinery  to  the  demands  of  the  war  not  only  proved 
to  be  of  immediate  service  in  helping  the  United  States  to  meet 
a  similar  emergency,  but  furnished  many  valuable  opportun- 
ities of  comparison  in  respect  to  the  efficiency  of  the  two  differ- 
ent systems  of  government.  The  experience  of  Great  Britain 
in  making  this  adjustment  belongs  to  a  subsequent  chapter, 
but  the  lessons  for  the  United  States  will  become  more  evident 
if  a  brief  reference  be  made  here  to  the  principles  underlying 
British  democracy  and  to  the  foundations  of  its  political  struc- 
ture. 

Democracy  in  Great  Britain.  Representative  govern- 
ment. The  foundations  of  British  democracy  can  be  traced  far 
back  into  its  Anglo-Saxon  past.  The  walls  of  the  edihce  were 
erected  but  slowly  from  the  thirteenth  century  onwards,  part 
being  added  upon  part  on  successive  occasions  of  political  revolt. 
The  nineteenth  century   saw   the  central   building  completed. 

1  See  below,  pp.  168-176. 


ON  THE  EVE  OF  THE  WORLD  WAR    25 

There  are  still  important  wings  to  be  added  before  the  structure 
can  be  said  to  be  finished  as  a  whole.  The  story  is  a  long  one 
and  is  marked  by  the  parallel  development  of  two  different 
principles,  the  right  of  the  individual  citizen  to  a  distinct  sphere 
of  personal  liberty  and  the  right  of  the  individual  citizen  to 
take  part  in  the  business  of  government.  The  latter  right  has 
been,  until  recent  years,  of  far  less  importance  to  the  average 
Englishman  than  the  former.  Magna  Charta  was  a  document 
of  liberty,  but  not  a  document  of  democracy.  It  contained 
guarantees  against  oppression  of  the  people  by  the  king,  but  it 
did  not  give  them  a  share  in  the  government.  At  the  time  of  its 
adoption  the  important  question  was  not  the  desire  of  the 
citizen  body  to  control  the  destinies  of  the  State,  but  the  desire 
to  be  protected  against  arbitrary  and  despotic  acts  in  the  affairs 
of  their  daily  lives.  In  the  same  century  a  national  Parliament 
was  established,  one  branch  of  which  admitted  the  knights  of 
the  shires  and  the  burghers  of  the  towns  to  representation  in 
an  assembly  of  very  limited  powers.  In  the  succeeding  cen- 
turies the  powers  of  Parliament  grew  in  extent,  but  its  com- 
position became  more  and  more  exclusive.  Franchise  qualifi- 
cations and  the  manipulation  of  seats  by  the  Government  nar- 
rowed the  governing  body  to  the  properties  classes.  The  Bill 
of  Rights,  which  marks  the  final  stage  of  the  struggle  against 
autocracy,  was  the  demand  of  an  aristocracy  for  its  lost  privi- 
leges, not  of  a  democracy  for  its  rights.  At  the  time  of  the 
American  Revolution  Parliament  was  elected  by  so  restricted 
a  suffrage  that  it  was  in  no  sense  representative  of  the  great 
masses  of  the  people.  It  was  not  until  the  act  of  1832  that 
the  suffrage  was  extended  to  the  great  middle  classes,  and 
not  until  the  acts  of  1867  and  1884  that  the  laboring  classes 
in  town  and  country  were  included.  As  things  stood  in  1914  the 
ideal  of  British  democracy  closely  approximated  to  the  Amer- 
ican ideal  in  recognizing  the  complete  right  of  a  majority  of 
the  electorate  to  control  the  Government  through  their  repre- 
sentatives in  Parliament.  It  remained  for  the  war  to  hasten 
the  passage  of  the  Representation  of  the  People  Act  of  1918, 


26        POLITICAL  SYSTEMS  IN  TRANSITION 

which  extended  the  suffrage  to  women  and  removed  some  of 
the  outworn  electoral  privileges  attached  to  the  possession  of 
property. 

The  rights  of  citizens.  But  if  the  popular  will  as  a  positive 
force  in  controlling  the  Government  was  late  in  obtaining  its 
present  recognition,  the  right  of  the  individual  to  a  sphere  of 
personal  liberty  as  against  the  encroachment  of  the  Government 
was  successfully  asserted  from  the  start.  Magna  Charta  is  best 
known  to  us  by  the  clause  which  calls  for  the  reinstatement 
of  the  old  "  law  of  the  land  "  which  had  been  taking  shape 
for  several  centuries.  The  right  to  trial  by  jury,  the  customary 
forms  of  procedure,  equality  before  the  law,  the  right  to  be 
secure  in  one's  person  and  one's  property  against  arbitrary 
restraints, —  these  were  the  aspects  of  free  government  which 
came  to  seem  essential  in  the  succeeding  years,  and  which  stiP. 
to  a  large  extent  dominate  the  thought  of  British  democracy. 
Freedom  of  speech  and  of  the  press  is  less  explicitly  laid  down 
in  the  law  of  Great  Britain  than  in  that  of  the  United  States 
or  of  France,  but  with  exceptions  based  upon  protection  against 
libel  and  against  treason,  it  is  none  the  less  securely  main- 
tained. It  is,  as  it  were,  an  implied  right,  which  has  needed 
no  formal  guarantee  from  the  Government,  yet  which  can  be 
restrained  by  any  jury  when  circumstances  of  libel  or  treason 
demand  it.  Such  also  is  the  right  of  assembly,  which  is  no 
more  than  the  right  of  citizens  to  do  as  a  group  what  they  may 
do  individually.  As  Professor  Dicey  has  pointed  out,  these 
traditional  rights  of  British  democracy  are  inferences  from  the 
general  "  rule  of  law  "  which  is  one  of  the  dominant  character- 
istics of  the  British  Constitution.  Parliament  may  be  corrupt; 
the  courts  may  decide  unjustly  in  individual  cases;  but  no  one 
may  question  the  principle  of  the  supremacy  of  the  law  as 
against  arbitrary  acts,  or  the  principle  of  the  equal  application 
of  the  law  to  all  without  discrimination.  Our  present  interest 
in  these  traditional  rights  arises  from  the  fact  that  the  im- 
perative demands  of  a  World  War  forced  the  Government  to 
deny  them  in  numerous  instances,  and  Englishmen  look#d  on 


ON  THE  EVE  OF  THE  WORLD  WAR    27 

with  mingled  feelings  of  resentment  and  resignation  at  the  sub- 
ordination of  their  domestic  liberties  to  the  safety  of  the  nation. 
But  what  was  more  serious  still,  even  the  old  '*  rule  of  law  " 
was  obliged  to  yield  in  part  to  the  emergency,  and  we  are  now 
witnessing  manifestations  of  isolated  "  lawlessness "  which, 
though  due  to  other  causes  than  the  war,  is  becoming  a  serious 
menace  to  the  future  welfare  of  British  democracy.  At  the 
same  time  the  question  is  being  asked  in  Great  Britain  whether 
there  can  be  true  democracy  under  an  economic  system  which 
has  kept  the  land  from  the  people,  and,  as  in  the  United  States, 
under  an  industrial  system  in  which  the  workers  have  no  con- 
trol over  the  conditions  under  which  they  must  live. 

The  British  Constitution.  If  American  political  institu- 
tions are  complex  in  their  number  and  inter-relations,  they  are 
at  least  the  product  of  a  definite  act  of  the  popular  will  and  are 
based  upon  provisions  specifically  laid  down  in  written  consti- 
tutions. By  contrast,  British  political  institutions,  while  simpler 
in  their  actual  working  mechanism,  rest  upon  a  far  more  in- 
tangible constitutional  basis.  No  single  written  instrument  em- 
bodies the  fundamental  law  from  which  the  agents  of  the  Gov- 
ernment derive  their  powers.  If  a  question  arises  as  to  the 
authority  upon  which  a  given  act  of  the  Government  is  based, 
it  cannot  be  answered  by  reference  to  the  text  of  an  original 
grant  of  the  people.  There  is,  indeed,  a  constitution,  but  it  is 
embodied  in  a  wide  variety  of  important  documents  drawn  up 
at  times  of  political  crisis,  in  statutes  of  Parliament  passed 
under  circumstances  which  have  given  them  a  special  author- 
ity and  permanence,  in  other  statutes  of  no  special  political 
importance,  and  in  customs  and  traditions  which  have  ob- 
tained recognition  in  the  decisions  of  the  courts.  Magna 
Charta,  the  Petition  of  Right,  the  Bill  of  Rights,  mark  certain 
stages  in  the  development  of  the  British  Constitution,  but  they 
are  far  from  being  an  embodiment  of  it.  From  time  to  time 
Parliament  has  pronounced  definitively  upon  certain  pressing 
issues,  such  as  the  extension  of  the  suffrage  during  the  nine- 
teenth century,  and  its  decision  has  acquired  for  the  time  being 


28         POLITICAL  SYSTEMS  IN  TRANSITION 

the  force  of  a  constitutional  enactment.  Such  statutes  are 
valid  in  their  own  right,  and  there  is  no  higher  law  by  which 
their  authority  need  be  tested.  But  in  addition  to  these  tangi- 
ble evidences  of  fundamental  law,  there  is  the  large  body  of 
customs  and  traditions  which  have  been  built  up  during  the 
course  of  centuries  and  which  represent  the  adaptation  of  the 
fundamental  law  to  the  needs  of  the  times  without  the  pro- 
cedure of  a  formal  amendment.  Those  which  relate  to  the 
rights  of  the  individual  in  his  relation  to  the  State  are  to  be 
found  in  a  long  line  of  judicial  decisions  which  have  the  author- 
ity of  written  rules  of  law.  No  position  of  priority,  however, 
is  accorded  them  by  reason  of  their  long  duration  or  funda- 
mental character,  should  acts  of  Parliament  be  passed  super- 
seding them.  Those  which  relate  to  the  organization  of  the 
Government  and  its  functions,  svich  as  the  dependence  of  the 
Cabinet  upon  the  House  of  Commons,  exist  in  the  form  of 
conventional  understandings  which  have  practically  the  force 
of  law,  but  which  could  be  set  aside  by  Parliament  without  rais- 
ing any  issue  of  which  the  courts  of  the  country  could  take 
jurisdiction. 

Elastic  character  of  the  British  Constitution.  It  will  be 
seen  at  once  that  the  British  Constitution  is  far  more  elastic 
than  that  of  the  United  States.  Changes  in  the  British  Con- 
stitution can  be  brought  about  by  the  same  procedure  which 
attends  the  passage  of  an  ordinary  law,  and  constitutional 
amendments  are  in  fact  indistinguishable  from  ordinary  laws 
except  in  respect  to  their  subject-matter.  What  does  an 
Englishman  mean,  then,  when  he  protests  against  a  law  as 
being  an  unconstitutional  invasion  of  his  private  rights?  He 
means  either  that  the  law  in  question  encroaches  upon  a  domain 
which  by  long  custom  has  been  regarded  as  outside  the  sphere 
of  governmental  interference,  or  that  the  law  regulates  those 
rights  in  a  manner  fundamentally  different  from  that  hitherto 
followed.  But  as  Parliament  is  omnipotent,  that  is  to  say,  as 
there  is  no  jurisdiction  on  the  part  of  the  courts  to  declare 
an  act  of  Parliament  null  and  void,  the  injured  party  has  no 


ON  THE  EVE  OF  THE  WORLD  WAR  29 

appeal  other  than  to  his  representative  in  Parliament  and  to 
the  public  opinion  of  his  fellow-citizens  who  are  similarly  af- 
fected by  the  law.  Under  such  a  constitution,  and  with  the 
supreme  power  of  the  whole  State  centralized  in  one  legislative 
body,  it  can  readily  be  seen  how  easy  it  was  for  the  British 
Government  to  adjust  itself  to  the  changes  required  by  the 
war.  The  most  drastic  amendments  to  the  fundamental  law 
could  be  made  without  raising  the  issue  of  their  legal  validity. 
On  the  other  hand  the  war  raised  the  question  whether  there 
was  sufficient  protection  for  the  personal  and  property  rights 
of  the  citizen,  when  an  act  of  Parliament  could  without  more 
ado  set  aside  the  customs  and  traditions  of  centuries. 

Popular  control  of  the  Government.  It  is  frequently  said 
that  the  British  Government  is  more  democratic  than  the  Gov- 
ernment of  the  United  States  in  that  it  is  more  directly  respon- 
sive to  changes  in  the  popular  will.  The  Cabinet  represents 
the  majority  in  Parliament  and  is  dependent  upon  that  major- 
ity for  its  continuance  in  office.  Should  the  majority  in  Parlia- 
ment become  dissatisfied  with  the  policies  of  the  Cabinet,  or 
should  one  or  more  of  the  groups  which  make  up  the  majority 
withdraw  its  support,  the  Cabinet  must  resign  in  favor  of  a 
new  group  of  leaders  possessing  the  confidence  of  Parliament. 
Assuming  that  Parliament  really  represents  the  popular  will, 
there  is  here  a  much  more  direct  control  over  the  policies  of 
the  Government  than  is  possible  in  the  case  of  a  government 
whose  officers  are  elected  for  fixed  terms.  Moreover,  by  a 
sort  of  reverse  process,  it  is  possible  for  the  Cabinet  to  decide 
that  a  majority  in  Parliament  does  not  actually  represent  the  lat- 
est expression  of  the  popular  will,  and  it  may  in  consequence 
dissolve  Parliament  and  order  a  new  election  for  the  purpose 
of  ascertaining  that  will  more  accurately.  This  form  of  na- 
tional referendum  had  come  by  the  close  of  the  nineteenth 
century  to  be  regarded  as  the  proper  procedure  when  important 
measures  were  brought  forward  which  were  not  in  the  minds  of 
the  electorate  when  the  existing  members  of  Parliament  were 
elected.     The  value  of  the  practice  may  be  seen  by  a  compar- 


30         POLITICAL  SYSTEMS  IN  TRANSITION 

ison  with  the  situation  which  developed  in  the  United  States 
after  the  elections  of  1916,  when  a  President  and  Congress, 
elected  in  part  because  they  would  keep  the  country  out  of 
war,  felt  obliged  to  declare  war;  and  again  after  the  elections 
of  1918,  when  an  administration  which  had  lost  its  support 
in  Congress  continued  to  direct  the  foreign  policies  of  the 
country.  On  the  other  hand  it  was  a  common  enough  criticism 
in  the  British  Liberal  press  before  the  war  that  cabinet  govern- 
ment was  not  in  all  respects  democratic.  There  was  a  notable 
absence  of  discussion  in  Parliament,  with  the  result  that  v/hile 
the  responsibility  of  the  Cabinet  to  the  people  was  sufficiently 
direct  in  respect  to  the  important  issues  which  figured  in  the 
headlines  of  the  daily  press,  the  Cabinet  was  practically  an  irre- 
sponsible body  in  respect  to  the  less  important,  or  rather  the 
less  conspicuous,  measures,  and  in  respect  to  the  detailed  ad- 
ministration of  the  law.  The  governing  class,  it  was  said,  was 
strongly  entrenched  in  the  Cabinet,  and  the  steady  gain  in  the 
power  of  the  Cabinet  at  the  expense  of  Parliament  had  re- 
duced the  British  Government  at  times  to  the  status  of  an 
oligarchy  rather  than  of  a  democracy.  These  grounds  of  criti- 
cism were  greatly  increased  as  the  result  of  the  new  functions 
assumed  by  the  Cabinet  during  the  war.^ 

Ideal  of  French  democracy.  Unlike  its  steady  growth 
in  Great  Britain,  the  development  of  democracy  in  France 
has  proceeded  as  a  series  of  cross-currents,  checking  one  an- 
other by  their  contact  at  sharp  angles,  but  in  the  resultant  of 
their  forces  moving  steadily  forward.  Popular  sovereignty 
as  a  theory  was  promulgated  in  France  by  Rousseau  even  be- 
fore Jefferson,  himself  under  the  influence  of  Rousseau,  drew 
up  the  American  Declaration  of  Independence.  With  the  out- 
break of  the  French  Revolution  came  the  literal  adoption  of 
the  theory,  with  the  most  radical  practical  applications  as  the 
Revolution  progressed.  Reactions  followed,  but  through  all 
the  period  of  conservative  constitutionalism  the  ideals  of 
"  liberty,  equality,  and   fraternity "  remained  a  force  in  the 

1  See  below,  pp.  8i-«6. 


ON  THE  EVE  OF  THE  WORLD  WAR    31 

background,  ready  to  exert  itself  in  emergencies.  Each  minor 
revolution,  with  its  installation  of  a  new  dynasty  or  a  new  re- 
public, served  to  define  anew  the  rights  of  the  people.  The 
triumph  of  democracy  seemed  assured  in  1848,  but  again  there 
was  a  set-back  and  for  two  decades  democracy  was  defeated 
by  an  appeal  to  a  flattering  imperialism.  Defeat  in  war  re- 
vived the  demand  for  republican  institutions,  and  after  four 
years  of  wavering  decision  the  Republic  was  finally  established 
in  1875,  ^^^  responsible  government  on  a  basis  of  manhood 
suffrage  marked  the  final  stage  in  the  changing  fortunes  of 
French  democracy.  The  supremacy  of  '*  the  general  will "  as 
the  legal  basis  of  the  State,  accompanied  by  the  recognition  of 
definite  moral  limitations  upon  that  will  in  the  interest  of 
maintaining  justice  and  order  in  society,  may  be  taken  as  the 
sum  of  French  political  idealism.  It  must  be  observed,  how- 
ever, that  unlike  the  express  provisions  of  the  United  States 
Constitution,  there  are  no  constitutional  limitations  upon  the 
will  of  the  people  as  expressed  through  their  representatives. 
The  power  of  the  Chambers  is  as  absolute  as  that  of  the  Bour- 
bon dynasty  before  1789. 

Character  of  the  French  Constitution.  Constitutional 
government  in  France,  while  based  upon  much  the  same  ideal 
of  democracy  which  prevails  in  the  United  States  and  Great 
Britain,  presents  variations  in  the  organization  of  its  agencies 
of  government  which  offer  many  instructive  points  of  com- 
parison. We  have  seen  that  French  democracy  has  not  felt  it 
necessary  to  place  legal  restraints  upon  its  own  freedom  of 
action.  The  Revolution  did,  indeed,  issue  a  Declaration  of  the 
Rights  of  Man  and  of  the  Citizen  closely  paralleling  the  Amer- 
ican Declaration  of  Independence,  but  with  the  overthrow  of 
the  royal  power  it  was  not  felt  necessary  then  or  later  to 
include  that  statement  in  the  Constitution  of  the  State  as  a 
guarantee  to  the  citizen  body  against  its  own  agents  of  govern- 
ment. Popular  control  over  those  agents  was  regarded  as  of 
itself  a  sufficient  guarantee  of  individual  rights.  Moreover, 
the  present  Constitution,  consisting  of  "  organic  laws  "  enacted 


32        POLITICAL  SYSTEMS  IN  TRANSITION 

in  1875,  with  subsequent  amendments,  is  the  product  not  of  a 
constitutional  convention  elected  for  that  purpose,  but  of  an 
Assembly  elected  to  conclude  peace  with  Germany,  which  took 
upon  itself  the  task  of  a  constitutional  convention  because  of 
the  emergency  in  which  the  country  was  placed.  The  Consti- 
tution which  this  Assembly  drafted  was  never  submitted  to 
the  people  for  formal  ratification.  Amendments  to  it  may  be 
made  without  other  formality  than  a  joint  session  of  the  two 
legislative  bodies.  The  Constitution  of  France  is,  therefore, 
not  based  upon  a  formal  creative  act  of  the  people,  but  upon 
the  ratification  implied  in  the  subsequent  acquiescence  of  the 
people  in  the  acts  of  the  various  National  Assemblies  which 
have  taken  part  in  its  adoption. 

Checks  and  balances  in  the  French  Government.  But 
while  there  are  no  constitutional  safeguards  in  France  in  re- 
spect to  the  powers  of  the  Government,  there  are  checks  and 
balances  which  tend  to  offset  radical  or  ill-considered  legislation. 
These  checks  and  balances  consist  in  the  partial  separation  of 
the  powers  of  the  Government  and  in  the  indirect  methods  of 
electing  the  President  and  the  Senate.  The  President  is  elected 
not  by  popular  vote  but  by  the  two  houses  of  the  legislature 
sitting  in  joint  session.  His  executive  powers  are,  however, 
very  limited,  since  he  is  by  law  obliged  to  appoint  as  his  Council 
of  Ministers  men  who  have  the  support  of  the  Chamber  of 
Deputies.  The  result  is  that  the  President  is  actually  dom- 
inated by  his  Council,  which  under  the  name  of  the  Cabinet 
is  the  controlling  body  of  the  Government.  The  composition 
of  the  Senate  is,  however,  an  actual  as  well  as  a  legal  check 
upon  the  Chamber.  Its  members  hold  office  for  nine  years, 
and  they  are  elected  indirectly  by  electoral  colleges  within  "ich 
of  the  departments  into  which  the  country  is  divided.  1  '  » 
since  the  Council  of  Ministers  is  dependent  solely  upon  « 
majority  in  the  Chamber  of  Deputies,  the  control  of  the  Senate 
is  limited  to  its  veto  upon  legislation  and  does  not  extend  to  the 
administration  of  the  law.  In  this  latter  field  some  measure  of 
restraint  upon  the  government  is  to  be  found  in  the  special 


ON  THE  EVE  OF  THE  WORLD  WAR    33 

administrative  courts  created  to  deal  with  the  powers  and  liabili- 
ties of  public  officials.^ 

Instability  of  French  cabinets.  Not  only  is  there  no  con- 
stitutional control  by  a  majority  of  the  people  over  the  gov- 
ernment they  have  elected,  or  by  a  minority  of  the  people  over 
the  small  majority  which  may  carry  a  given  election,  but  no 
direct  relations  have  been  established  between  the  Cabinet  and 
the  people  as  has  been  the  case  of  recent  years  in  Great  Britain. 
The  practice  of  calling  a  general  election  to  obtain  an  expres- 
sion of  the  will  of  the  people  upon  important  pending  con- 
stitutional questions  is  blocked  by  the  fact  that  the  lower  house 
cannot  be  dissolved  by  the  President  at  the  demand  of  the 
Cabinet,  but  the  Senate  also  must  give  its  approval.  In  con- 
sequence, a  Cabinet  which  feels  that  it  has  the  country  behind 
it  may  not  of  its  own  motion  appeal  to  the  country  over  the 
heads  of  the  members  of  the  Chamber.  Moreover,  the  large 
number  of  political  parties  in  France,  and  the  fact  that  no  one 
of  them  commands  a  majority  in  the  Chamber,  makes  it  neces- 
sary to  constitute  coalition  ministries  roughly  representing  the 
various  groups.  Owing,  however,  to  the  lack  of  any  definite 
principles  or  policies  to  which  these  groups  are  committed,  it 
is  impossible  for  the  Cabinet  to  feel  sure  that  the  majority  be- 
hind it  at  any  given  time  can  be  counted  upon  to  support  its 
measures.  Cabinets  rise  and  fall,  therefore,  in  rapid  succes- 
sion, and  yet  it  is  difficult  for  the  average  citizen  to  know 
whether  the  apparent  cause  of  their  fall  was  the  real  one,  and 
how  far  his  own  principles  have  gained  or  lost  by  the  change. 
The  instability  of  ministries  would,  indeed,  seriously  interfere 
with  the  conduct  of  public  business,  were  it  not  for  the  fact 

^  F.  J.  Goodnow,  in  his  "  Principles  of  Constitutional  Government," 
p.  2Z'J,  is  of  the  opinion  that  these  courts  have  elaborated  a  legal  sys- 
tem "  which  is  surpassed  by  none  in  its  success  both  in  protecting  in- 
dividual rights  and  in  promoting  government  efficiency."  Other  writers 
regard  them  as  making  the  executive  independent  of  the  judiciary,  so 
that  there  is  "one  law  for  the  citizen  and  another  for  the  public  offi- 
cial." Lowell,  ''Governments  and  Parties  in  Continental  Europe," 
T.  p.  58. 


34        POLITICAL  SYSTEMS  IN  TRANSITION 

that  many  of  the  ministers  who  give  up  office  when  the  Cabinet 
resigns  are  promptly  reappointed  in  the  succeeding  Cabinet  to 
the  same  or  other  posts. 

Centralization  of  the  French  administrative  system.  A 
final  point  in  the  French  Constitution  which  offers  particularly 
instructive  contrasts  with  the  federal  character  of  the  Ameri- 
can Government  is  the  centralization  of  the  French  administra- 
tive system.  Of  recent  years  many  complaints  have  been 
heard  that  while  France  is  in  other  respects  a  democracy  her 
administrative  system  has  remained  unchanged  since  the  days 
of  Napoleon,  and  that  it  is  in  organization  as  well  as  in  fact  a 
bureaucracy.  With  the  exception  of  the  minimum  of  self-gov- 
ernment possessed  by  the  local  communes  laws  are  made  at 
Paris  for  the  whole  of  France,  and  are  executed  by  the  Minister 
of  the  Interior  through  the  agency  of  a  prefect  appointed  by 
the  government  in  each  of  the  departments.  These  prefects, 
over  whom  the  people  of  the  departments  have  no  direct  control, 
have  a  wide  range  of  authority  extending  from  the  supervision 
of  the  execution  of  the  national  laws  to  the  control  of  much 
of  the  local  legislation  of  the  communes.  Two  distinct  issues 
appear  to  be  involved  in  the  attack  upon  this  centralized  system : 
in  the  first  place  it  puts  into  the  hands  of  the  government  so 
large  an  amount  of  political  patronage  that  it  is  possible  for 
the  party  in  power  (or  the  combination  of  parties)  to  entrench 
itself  so  strongly  that  it  cannot  be  dislodged  except  by  an  over- 
whelming majority.  In  the  second  place  it  entirely  eliminates 
self-government  in  the  local  divisions  of  the  state,  except  in  the 
communes,  and  even  in  the  communes  it  reduces  self-govern- 
ment to  the  status  of  a  ward  under  guardianship.  Decentrali- 
zation is  the  remedy  urged  to  meet  the  second  of  these  problems, 
and  the  question  is  once  more  raised  in  France  whether  there 
can  be  liberty  in  a  state  unless  there  is  local  self-government  and 
a  strong  sense  of  local  as  well  as  of  national  patriotism.^ 

^A  discussion  of  the  subject  may  be  found  in  a  recent  article  by  J. 
W.  Garner.  "  Administrative  Reform  in  France,"  in  the  "  American 
Political  Science  Review,"  February,  1919,  p.  17. 


ON  THE  EVE  OF  THE  WORLD  WAR    35 

The  Prussian  theory  of  government.  In  contrast  to  the 
American,  British,  and  French  ideal  of  democracy,  the  Prus- 
sian theory  of  government  leads  us  into  new  fields.  Here 
again  the  ideal  must  be  judged  both  from  the  facts  of  poHtical 
history  and  from  the  teachings  of  statesmen  and  of  scholars. 
In  the  first  place  the  constitutions  both  of  Prussia  and  of 
Germany  prior  to  the  outbreak  of  the  war  represented  in  their 
origin  not  the  imperative  assertion  by  the  people  of  a  right  of 
self-government,  but  the  more  or  less  voluntary  concession  by 
an  absolute  monarch  of  a  limited  measure  of  democracy.  The 
unsuccessful  revolution  of  1848  in  Berlin  doubtless  made  it 
seem  not  inexpedient  on  the  part  of  William  I  to  promulgate 
the  Prussian  Constitution  of  1850,  but  nowhere  in  Prussian 
law  was  the  theory  recognized  of  popular  self-government  as 
an  absolute  and  indefeasible  right.  The  constitution  of  the 
German  Empire,  adopted  in  1871,  was,  like  our  own,  the  con- 
stitution of  a  federal  state,  but  there  was  no  suggestion  of 
popular  sovereignty  in  its  provisions  similar  to  the  provision 
"  we  the  people  ...  do  ordain,"  contained  in  the  preamble  to 
the  Constitution  of  the  United  States.  "  The  people  "  in  Prus- 
sia were  from  one  point  of  view  a  class  distinct  from  the 
governing  authorities. 

At  the  same  time  the  theories  of  government  promulgated 
in  scientific  publications  and  taught  in  the  universities  were 
entirely  in  accord  with  the  legal  position  assigned  by  the  con- 
stitution to  the  great  body  of ^  the  people.  The  state  was  not  a 
mere  group  of  people  who  had  organized  themselves  for  the 
furtherance  of  their  common  welfare.  It  had  a  personality  of 
its  own  distinct  from  the  collective  personality  of  its  citizens; 
and  in  consequence  it  might  pursue  ends  quite  apart  from  the 
wishes  of  its  citizens  as  individuals.  It  was  doubtless  from  the 
highest  motives  of  patriotism  that  Fichte  enforced,  in  1807- 
1808  at  the  University  of  Berlin,  the  idea  of  civic  duty  and  self- 
sacrifice  to  the  interests  of  the  state ;  but  in  so  doing  he  sub- 
ordinated the  individual  to  the  state  to  the  extent  of  making 
the  rights  of  the  individual  wholly  dependent  upon  the  state. 


3(5i        POLITICAL  SYSTEMS  IN  TRANSITION 

Hegel,  lecturing  a  decade  later  at  the  same  university,  went 
still  further  in  his  deification  of  the  state,  in  whose  welfare 
the  interest  of  the  citizen  found  its  highest  expression.  The 
state  did  not  exist  for  the  welfare  of  the  citizens  who  composed 
it,  but  for  the  ethical  idea  embodied  in  it;  so  that  if  the  need 
should  arise  individuals  and  their  personal  interests  ought  to  be 
sacrificed  for  the  advancement  of  the  state.  The  doctrines 
of  Hegel  became  the  stock  in  trade  of  German  university  pro- 
fessors and  received  little  or  no  check  in  consequence  of  the 
small  measure  of  self-government  allotted  to  the  people  by  the 
constitutions  of  1850  and  1871.  As  developed  in  the  teachings 
of  more  recent  writers  and  applied  to  the  domestic  and  for- 
eign problems  of  the  German  Empire  they  have  been  a  familiar 
object  of  attack  during  recent  years.  Their  interest  in  connec- 
tion with  the  ideal  of  democracy  lies  in  the  fact  that  it  is  a 
simple  step  to  infer  from  the  enthronement  of  the  state  as  an 
entity  superior  to  the  sum  of  its  members  the  conclusion  that 
the  state  is  not  bound  by  the  moral  standards  of  its  individual 
citizens.  "  It  is  a  further  consequence,"  says  the  historian 
Treitschke,  **  of  the  essential  sovereignty  of  the  state  that  it 
can  acknowledge  no  arbiter  above  it,  and  must  ultimately  sub- 
mit its  legal  obligations  (towards  others)  to  its  own  verdict.^ 
The  German  Constitution  in  1914.  So  much  has  been  writ- 
ten since  the  beginning  of  the  war  on  the  subject  of  the  Ger- 
man Government  that  it  is  only  necessary  here  to  call  attention 
to  certain  outstanding  features  of  the  German  Constitution  as 
it  stood  in  1914  which  explain  how  it  was  that  a  constitution 
which  presented  so  many  of  the  familiar  features  of  a  demo- 
cratic frame  of  government  could  in  reality  be  the  instrument 
of  absolutism.  This  is  all  the  more  important  because  in  its 
outward  appearance  the  German  Constitution  of  1914  bore  a 
marked  likeness  to  that  of  the  United  States  in  respect  to  the 
organization  and  powers  of  the  government.     There  is,  indeed, 

^A  full  and  logical  discussion  of  the  whole  subject  may  be  found  in 
the  recent  volume  by  W.  W.  Willoughby,  "  Prussian  Political  Philoso- 
phy." 


ON  THE  EVE  OF  THE  WORLD  WAR    37 

a  striking  difference  between  the  two  documents  in  that  the 
Constitution  of  Germany  made  no  provision  for  the  protection 
of  the  rights  of  the  individual  against  the  state,  which,  as  we 
have  seen,  is  a  characteristic  feature  of  the  Constitution  of  the 
United  States.  The  act  of  the  Imperial  German  legislative  body- 
was  the  supreme  law,  and  there  was  no  appeal  which  the  citizen 
might  take  to  any  higher  law  protecting  his  fundamental  rights. 
It  is  true  that  the  Constitution  of  Germany  enumerated  a  body 
of  rights  bebnging-  to  the  citizens  of  the  empire  which  might 
not  be  encroached  upon  by  the  several  states,  but  these  rights 
afforded  no  protection  against  the  Federal  Government  itself 
nor  against  the  separate  state  governments  in  respect  to  their 
own  citizens.  "  Constitutionally,  then,"  says  Professor 
Burgess,  "  the  immunities  of  the  individual  as  against  the 
powers  of  the  imperial  legislature  and  executive  taken  together 
are  nothing ;  as  against  the  acts  of  the  legislature  and  executive 
they  are  what  these  bodies  resolve  to  allow  them  to  be."  ^ 
Moreover,  the  Constitution  of  Germany  embodied  none  of  those 
conventions  founded  on  custom  and  tradition  which  constitute 
a  practical  if  not  legal  guarantee  of  individual  liberties  in  Great 
Britain  even  against  an  omnipotent  Parliament. 

Powers  of  the  Kaiser.  The  position  of  the  Kaiser  as  Ger- 
man Emperor  by  reason  of  hereditary  succession  to  the  throne 
of  Prussia  was  in  sharp  contrast  to  the  American  plan  of  an 
executive  elected  for  a  fixed  term,  but  the  actual  powers  at- 
tached to  the  two  offices  were  not  greatly  dissimilar.  In  Ger- 
many as  in  the  United  States  the  power  to  negotiate  treaties 
was  in  the  hands  of  the  chief  executive,  but  in  the  case  of  the 
Kaiser  the  consent  of  the  Bundesrat  was  not  necessary  unless 
the  treaty  conflicted  with  some  provision  of  constitutional  or 
statutory  law;  whereas  in  the  case  of  the  President  every 
treaty  must  be  submitted  to  the  Senate  for  ratification.  More- 
over, the  President  of  the  United  States  has  no  power  to  de- 
clare war,  although,  as  we  shall  see,  he  can  take  steps  which 
may   make   war    practically   inevitable;    whereas   the    Kaiser 

1"  Political  Science  and  Constitutional  Law."  I,  180. 


38        POLITICAL  SYSTEMS  IN  TRANSITION 

might  on  his  own  initiative  declare  war  in  cases  where  the 
federal  territory  was  attacked,  of  which  he  was  the  sole  judge. 
At  the  same  time  the  Kaiser  could  manipulate  the  forces  at 
work  in  a  diplomatic  crisis  so  as  to  create,  as  in  1914,  a  situa- 
tion in  which  the  federal  territory  might  be  said  to  be  at- 
tacked when  in  reality  the  reverse  was  the  case.  Unlike  the 
President  of  the  United  States  the  Kaiser  had  no  veto  power 
over  legislation,  but  on  the  other  hand  he  had  the  power  not 
only  to  convoke  but  to  adjourn  and  under  restrictions  to  dis- 
solve the  legislature.  The  power  to  adjourn  was  several  times 
used  during  the  war  to  prevent  the  Reichstag,  the  popular  re- 
presentative body  of  the  Empire,  from  interfering  with  the  con- 
duct of  military  and  diplomatic  affairs.  The  absence  of  minis- 
terial responsibility  made  it  impossible  for  the  Reichstag  to 
question  the  conduct  of  public  affairs  in  an  imperative  manner. 
Influence  of  Prussia  in  the  Bundesrat.  As  the  Senate 
of  the  United  States  represents  the  component  states 
of  the  union,  the  Bundesrat  represented  the  states  con- 
stituting the  German  Empire.  The  composition  of  the  two 
bodies  differed,  however,  in  that  the  representation  of  the  Ger- 
man states  in  the  Bundesrat  was  not  on  the  basis  of  equality, 
as  in  the  case  of  the  Senate,  and  in  that  the  members  of  the 
Bundesrat  were  appointed  by  the  governments  of  the  several 
states,  not  elected  by  the  state  legislatures,  or  by  direct  popular 
vote  as  in  the  case  of  the  United  States  Senators  since  1913. 
The  delegations  of  the  several  states  voted  as  a  unit,  which 
made  it  an  easy  matter  for  their  respective  governments  to  con- 
trol their  votes.  Moreover,  the  powers  of  the  Bundesrat  in 
respect  to  legislation  were  considerably  greater  than  those 
of  the  American  Senate;  for  bills  were  first  presented  to  the 
Bundesrat  by  the  Chancellor  as  the  representative  of  the  Em- 
peror and,  if  adopted,  were  tlien  sent  to  the  Reichstag.  It  is  in 
the  composition  and  powers  of  the  Bundesrat  that  the  chief  un- 
democratic features  of  the  German  government  were  to  be 
found,  though  these  were  due  to  extrinsic  rather  than  to  in- 
herent defects.     Prussia  as  the  largest  German  state  had   17 


ON  THE  EVE  OF  THE  WORLD  WAR    39 

votes  in  the  Bundesrat  and  controlled  three  other  votes  abso- 
lutely and  three  more  conditionally.  It  controlled  all  the  chair- 
manships of  the  Bundesrat  except  that  of  the  committee  on 
foreign  affairs.  Prussia  was  thus  able  practically  to  dominate 
the  legislative  activities  of  the  Bundesrat,  and  in  consequence 
the  personnel  of  the  Prussian  delegation  was  of  prime  import- 
ance in  judging  of  the  character  of  the  Bundesrat.  It  was 
this  fact  which  caused  so  much  criticism  to  be  directed  against 
the  undemocratic  features  of  the  Government  of  Prussia  as  a 
separate  state,  which,  with  its  hereditary  and  appointive  upper 
house  and  its  drastic  property  restrictions  upon  the  suffrage  for 
the  lower  house,  constituted  the  guiding  hand  of  the  Empire. 
By  a  provision  of  the  constitution  which  made  14  negative  votes 
in  the  Bundesrat  sufficient  to  veto  a  proposed  constitutional 
amendment,  Prussia  was  given  the  power  to  block  any  constitu- 
tional reforms  not  acceptable  to  it. 

Democratic  character  of  the  Reichstag.  On  the  face  of 
things  the  Reichstag  bore  a  close  resemblance  to  the  House 
of  Representatives  of  the  United  States.  It  represented  the 
German  people  as  a  whole  and  thus  cut  across,  or  rather  ob- 
literated, the  boundary  lines  between  the  several  states.  But 
for  the  fact  that  there  had  been  no  redistribution  of  seats 
since  1871,  and  that  the  industrial  and  more  democratic  centers 
were  thus  discriminated  against,  the  Reichstag  was  elected  by 
a  thoroughly  democratic  suffrage.  Its  powers  extended  to  all 
subjects  within  the  competence  of  the  Empire,  that  is  to  say, 
to  all  subjects  enumerated  in  the  constitution  as  being  an  object 
of  imperial  legislation;  by  the  constitution  it  possessed  the 
right  to  initiate  legislation,  but  this  right  had  in  practice  given 
way  to  the  right  of  the  Bundesrat  to  prepare  measures  to  be 
submitted  to  the  Reichstag,  so  that  the  latter  body  in  reality 
did  little  more  than  give  its  consent  to  measures  already  passed 
upon  by  the  Bundesrat.  Moreover,  the  power  of  the  purse, 
which  has  been  in  other  countries  the  chief  means  by  which 
the  popular  house  of  the  legislature  has  enforced  its  will  upon 
the  non-elective  branches  of  the  government,  was  in  the  case 


40        POLITICAL  SYSTEMS  IN  TRANSITION 

of  the  Reichstag  seriously  restricted  by  the  fact  that  by  cus- 
tom the  army  appropriation  bills  were  voted  for  a  period  of 
five  years,  while  other  laws,  and  among  them  provisions  for 
taxation,  once  enacted,  continued  to  remain  in  force  until  re- 
pealed by  the  same  procedure  which  enacted  them,  in  spite 
of  the  fact  that  the  special  appropriations  desired  for  them 
were  withheld.  Furthermore,  German  students  of  constitu- 
tional law  asserted  as  a  principle  that  the  Reichstag  had  no  right 
to  refuse  to  pass  the  budget  in  order  to  coerce  the  executive 
department  into  acceding  to  its  wishes.  Lastly,  it  may  be  noted 
that  by  an  express  provision  of  the  constitution  the  army  was 
placed  directly  under  the  control  of  the  Emperor  and  was  bound 
by  oath  to  render  unconditional  obedience  to  him.  While  the 
several  states  furnished  their  respective  contingents,  the  army 
as  a  whole  was  organized  and  drilled  under  the  law  of  the 
Empire. 

The  Constitution  of  Russia  in  19 14.  Rights  of  citizens. 
The  constitution  of  Imperial  Russia,  like  that  of  Germany, 
came  into  being  in  the  form  of  a  grant  from  the  sovereign  to 
the  people.  Not  being  framed  by  a  constituent  assembly,  it 
represented  the  minimum  of  self-government  which  the  czar 
and  his  advisers  believed  it  necessary  to  concede  to  popular  de- 
mand, rather  than  an  instrument  of  government  drawn  up  by 
the  people  to  give  effect  to  a  definite  theory  of  political  organi- 
zation. As  late  as  the  revolution  of  1905  the  Russian  citizen 
enjoyed  neither  the  protection  of  a  habeas  corpus  act,  nor  the 
right  of  free  assembly,  nor  the  right  to  present  individual  or 
collective  petitions.  Freedom  of  the  press  was  severely  re- 
stricted, as  was  freedom  of  communication  by  letter  or  printed 
pamphlet.  The  Fundamental  Laws  of  May  6,  1906,  con- 
tained an  imitation  "  bill  of  rights  "  framed  along  lines  of  the 
traditional  guarantees  of  the  British  and  American  constitu- 
tions; but  the  provisions  of  the  law  were  qualified  at  almost 
every  turn  by  the  right  of  the  government  to  make  exceptions 
by  general  law.  While  there  was  a  theoretical  equality  before 
the  law  in  respect  to  fundamental  rights,  there  was  at  the  same 


ON  THE  EVE  OF  THE  WORLD  WAR    41 

time  a  legal  distinction  of  classes  and  a  discrimination  in  respect 
to  the  value  of  suffrage  in  favor  of  the  lesser  landed  proprietors 
as  against  the  peasantry  and  in  favor  of  the  larger  proprietors 
as  against  the  lesser.^  In  consequence  the  abstract  protection 
afforded  to  the  fundamental  rights  of  citizenship  was  rendered 
practically  valueless  in  view  of  the  actual  inequality  of  social 
status  and  industrial  opportunity,  and  in  view  of  the  impos- 
sibility of  remedying  these  conditions  by  the  processes  of  law. 

Organization  of  the  government.  The  organization  of  the 
government  was  so  constituted  as  to  deny  to  the  one  body  re- 
presentative of  the  people  any  control  over  the  administration 
of  the  law  or  the  direction  of  foreign  affairs.  According  to 
the  Fundamental  Laws  of  1906  the  Czar,  as  Emperor  of  all 
the  Russias,  wielded  the  "  supreme  autocratic  power."  He  had 
"  supreme  control  of  all  relations  of  the  Russian  Empire  with 
foreign  powers,"  and  he  determined  "the  course  of  the  inter- 
national policy  of  the  Russian  Empire."  The  emperor  had  the 
right  to  declare  war  and  to  conclude  peace  and  to  enter  into 
treaties  with  foreign  countries.  He  was,  moreover,  in  supreme 
command  of  the  army  and  navy,  and  could  order  their  mobili- 
zation and  direct  their  operations.  These  powers  were  not 
nominal,  as  in  the  case  of  a  constitutional  monarchy  like  Great 
Britain,  but  were  powers  autocratically  exercised  and  subject  to 
no  conventional  limitations.  Assisting  the  emperor  in  the  ad- 
ministration of  the  empire  was  a  Council  of  Ministers,  ap- 
pointed by  him  and  acting  as  heads  of  the  principal  depart- 
ments. The  legislative  body  consisted  of  an  upper  and  a  lower 
house.  The  former,  known  as  the  Imperial  Council,  was  in 
part  appointed  by  the  emperor  and  in  part  elected  by  various 
groups  within  the  citizen  body.  Its  composition  was  ultra- 
conservative  in  character,  and  while  it  did  not  as  a  rule  initiate 
legislation  its  consent,  like  that  of  the  emperor,  was  necessary 
to  the  adoption  of  measures.     By  a  process  of  elimination, 

^Details  of  the  suffrage  provisions,  which  compare  with  the  three- 
class  system  in  force  in  Prussia,  have  been  reserved  until  the  discussion 
of  the  new  revolutionary  government.     See  below,  p.  (fj. 


42        POLITICAL  SYSTEMS  IN  TRANSITION 

therefore,  it  can  be  seen  that  the  lower  house,  or  Duma,  while 
representative  of  the  people  within  the  limits  of  the  restricted 
suffrage  system,  was  exceedingly  limited  in  its  powers.  There 
was  no  ministerial  responsibility  to  enable  it  to  control  the 
administration  of  the  laws  or  the  foreign  policies  of  the  gov- 
ernment ;  and  its  control  over  the  budget,  which  in  other  coun- 
tries has  been  the  lever  of  democratic  progress,  was  limited  by 
the  rule  that  certain  customary  expenditures,  amounting  to  47 
per  cent,  of  the  whole  budget,  were  "  protected  "  by  the  consti- 
tution. The  army  and  navy  were  formally  outside  the  range 
of  its  powers.  When  mobilization  was  about  to  be  ordered  by 
the  government  on  July  30,  1914,  the  Duma  was  as  powerless 
to  impose  a  restraint  as  was  the  German  Reichstag  in  the  case 
of  the  Kaiser.  Neither  parliament  gave  its  assent  to  the  war 
until  the  die  had  been  cast  and  protests  would  have  been  of  no 
avail. 


PART  11 

CHANGES  BROUGHT  ABOUT  BY  THE  WAR  IN  THE 
POLITICAL  INSTITUTIONS  OF  EUROPEAN  COUN- 
TRIES.   COMPARISONS  AND  CONTRASTS 


CHAPTER  III 

COUNTRIES   WITH   AUTOCRATIC   GOVERNMENTS 

War  a  contest  between  whole  peoples.  It  will  doubtless 
be  conceded  even  by  those  who  have  greatest  faith  in  democracy 
as  an  ideal  of  government  that  autocratic  governments  possess 
an  initial  advantage  when  faced  with  the  problem  of  a  great 
war.  For  the  conflicts  of  nations  are  no  longer  contests  merely 
between  the  armed  forces  of  the  belligerents  in  the  field.  War 
is  now  fought  between  the  entire  citizen  body  of  one  nation  and 
that  of  the  enemy,  and  the  old  distinction  between  combatants 
and  non-combatants  has  been,  except  in  minor  respects,  entirely 
wiped  out.  The  army  that  fights  must  now  be  supported  by  a 
far  larger  civilian  force  at  home,  engaged  in  a  wide  variety  of 
tasks  which  are  in  the  truest  sense  "  the  sinews  of  war."  The 
general  staff  which  plans  the  details  of  the  campaign  must  take 
counsel  with  the  board  of  business  advisers  who  know  how  to 
reach  the  sources  of  supply  for  army  and  navy  and  can  best 
direct  their  distribution;  the  laborer  in  factory  and  shipyard 
is  brother  in  arms  to  the  soldier  in  the  field;  the  farmer  must 
contribute  the  extra  bushel  of  wheat  without  which  the  food 
supplies  of  the  country  would  be  inadequate;  women  must  take 
the  places  in  war  industries  left  vacant  by  the  call  of  the  men  to 
arms ;  and  the  public  at  large,  old  and  young,  must  alter  their 
ways  of  life  in  so  far  as  is  necessary  to  economize  this  or  that 
vital  element  in  the  nation's  fighting  strength.  A  war  of  dead- 
locked battle  lines  becomes  necessarily  a  war  of  exhaustion,  and 
makes  it  imperative  that  the  resources  of  the  nation  be  drawn 
upon  to  the  point  of  their  utmost  contribution. 

Organization  essential  to  success.  Now  where  the  energies 
of  an  entire  nation  are  brought  to  bear  upon  a  single  object, 
organization  becomes  an  essential  factor  of  success.     Coordina- 

45 


46         POLITICAL  SYSTEMS  IN  TRANSITION 

tion  and  subordination  of  the  diverse  economic  forces  is  as  im- 
portant as  the  existence  of  the  forces  themselves.  Govern- 
ment now  takes  on  a  new  character.  Hitherto  it  has  been  oc- 
cupied primarily  with  the  task  of  maintaining  law  and  order  in 
the  community,  leaving  for  the  most  part  to  the  free  play  of 
individual  activity  the  satisfaction  of  the  economic  needs  of 
the  people.  It  now  finds  that  it  must  assume  control  of  prac- 
tically the  entire  life  of  the  community.  Production  must 
be  regulated  to  meet  the  demands  of  war;  industries  engaged 
in  the  manufacture  of  unessential  articles  must  either  be  dis- 
continued or  turned  to  the  production  of  essential  articles ;  raw 
materials  must  be  withheld  from  one  factory  and  given  to  an- 
other on  the  basis  of  their  contribution  to  the  needs  of  the 
war.  Distribution  must  no  longer  be  a  matter  of  satisfying 
individual  wants  but  of  meeting  national  demands.  Prices  are 
no  longer  to  be  regulated  by  the  shifting  law  of  supply  and 
demand,  but  by  an  arbitrary  standard  of  cost  of  production. 
There  are  thus  cast  upon  the  Government  a  wide  variety  of 
tasks  to  which  its  organization  in  time  of  peace  is  more  or  less 
inadequate.  New  administrative  departments  must  be  created 
and  new  authority  conferred  upon  their  officials.  At  the  same 
time  complete  unity  of  command  becomes  as  essential  to  the 
nation  as  to  its  fighting  army,  and  the  protection  of  individual 
rights  ceases  for  the  time  to  be  the  object  of  government  in 
favor  of  the  protection  of  the  community  as  a  whole  against 
external  aggression. 

Initial  advantage  possessed  by  autocracy.  It  is  clear  that 
a  government  organized  along  lines  which  concentrate  authority 
in  the  hands  of  a  single  ruler  or  of  a  small  number  of  men, 
and  which  remove  that  authority  from  the  immediate  control  of 
a  popular  assembly,  can  accomplish  the  task  of  transforming  a 
nation  engaged  in  the  activities  of  peace  into  a  nation  devoting 
the  last  ounce  of  its  strength  to  war  far  more  easily  than  can 
a  democratic  government.  Thus  far  in  the  world's  history  it 
has  not  been  found  possible  to  organize  great  armies  upon  any 
other  basis  than  that  of  the  most  rigid  autocratic  authority ;  so 


AUTOCRATIC  GOVERNMENTS  47 

that  the  call  of  a  nation  to  arms  is  a  call  upon  it  to  submit  it-  ( 
self  in  a  greater  or  less  degree  to  the  military  discipline  of  an 
armed  camp.  The  discussions  of  parliaments  and  the  checks 
and  balances  of  a  democratic  government  do  but  delay  and 
impede  the  working  of  the  great  national  machine,  which  can- 
not successfully  function  unless  its  individual  parts  are  obedient 
to  a  single  guiding  hand.^  It  is  not  merely  a  question  of  the 
organization  of  an  autocratic  government  being  better  prepared 
to  assume  the  task  of  directing  all  the  forces  of  the  nation  to 
a  common  object.  There  is  also  the  important  consideration 
that  the  citizens  of  the  state  have  become  accustomed  to  the 
voice  of  command  and  submit  the  more  readily  to  the  demands 
made  upon  them.  While  popular  governments  are  justifying 
to  their  constituents  the  encroachments  made  upon  their  liber- 
ties, the  autocratic  government  is  receiving  the  prompt  obedi- 
ence of  a  discipHned  people.  Both  Germany  and  Russia  prof- 
ited from  this  unquestioning  response  of  their  citizen  body; 
but  Germany's  advantage  lay  both  in  the  fact  that  her  people*" 
rendered  a  more  intelligent  and  better-trained  service,  and  in 
the  fact  that  the  supreme  control  of  the  state  also  extended 
over  a  highly  organized  industrial  system. 

The  menace  of  autocracy.  We  have  seen  above  that  the 
absence  of  ministerial  responsibility  in  Germany  left  the  Kaiser 
in  complete  control  of  the  diplomatic  relations  of  the  Empire 

1  Sir  Henry  Maine  has  expressed  in  telling  form  the  inconsistency 
of  great  armies  and  popular  government.  *'  No  two  organizations," 
he  says,  "  can  be  more  opposed  to  one  another  than  an  army  scien- 
tifically disciplined  and  equipped,  and  a  nation  democratically  gov- 
erned. The  great  military  virtue  is  obedience;  the  great  military  sin 
is  slackness  in  obeying.  It  is  forbidden  to  decline  to  carry  out  orders, 
even  with  the  clearest  conviction  of  their  inexpediency.  But  the  chief 
democratic  right  is  the  right  to  censure  superiors;  public  opinion, 
which  means  censure  as  well  as  praise,  is  the  motive  force  of  demo- 
cratic societies.  The  maxims  of  the  two  systems  flatly  contradict  one 
another,  and  the  man  who  would  loyally  obey  both  finds  his  moral 
constitution  cut  into  two  halves."  "  Popular  Government,"  p.  22 ; 
quoted  by  Politicus,  "  Many-Headed  Democracies  and  War,"  "  Fort- 
nightly Review,"  May,  1916. 


48        POLITICAL  SYSTEMS  IN  TRANSITION 

with  other  nations.  Negotiations  might  be  entered  into  in 
secret  and  plans  adopted,  such  as  those  agreed  upon  at  the  con- 
ference at  Potsdam  in  July,  19 14,  without  the  popular  house 
of  the  legislature  being  informed  of  their  existence.  War 
threatens  in  consequence  of  the  Austrian  ultimatum  to  Serbia, 
and  still  the  Reichstag  is  officially  unaware  of  the  danger  of  the 
situation.  Mobilization  is  ordered  and  war  actually  declared 
and  begun  before  the  Reichstag  is  summoned  in  session.  On 
August  4  the  representatives  of  the  people  are  told  that  Ger- 
many is  being  attacked  and  are  asked  to  vote  the  necessary 
credits.  Considering  all  the  factors  of  the  situation  it  is  now 
too  late  to  back  out,  and  even  those  who  would  not  have  voted 
to  begin  the  war  are  practically  coerced  to  support  it.  Such 
are  the  conditions  which  throw  light  upon  the  meaning  of 
President  Wilson's  phrase  that  "  the  world  must  be  made  safe 
for  democracy."  '*  Self-governing  nations,"  as  the  President 
says  elsewhere  in  the  same  address,  "  do  not  fill  their  neighbor 
states  with  spies  or  set  the  course  of  intrigue  to  bring  about 
some  critical  posture  of  affairs  which  will  give  them  an  oppor- 
tunity to  strike  and  make  conquest.  Such  designs  can  be  suc- 
cessfully worked  out  only  under  cover  and  where  no  one  has 
the  right  to  ask  questions."  Autocratic  nations  must,  therefore, 
be  deprived  of  their  power  to  prepare  in  secret  and  strike  with 
suddenness  the  blow  which  democratic  nations  are  by  their 
very  nature  at  a  disadvantage  in  parrying. 

German  state  socialism  an  advantage  in  time  of  war.  A 
further  initial  advantage  possessed  by  Germany  when  con- 
fronted by  the  demands  of  a  great  war  is  to  be  found  in  the 
extent  to  which  state  socialism  had  been  adopted  in  the  years 
preceding  the  war.  Unlike  orthodox  socialism,  which  advo- 
cates government  ownership  of  the  instruments  of  production 
and  distribution  in  a  state  controlled  by  the  workers,  **  state 
socialism,"  as  the  term  is  now  generally  used,  consists  in  a 
combination  of  government  ownership  of  certain  industries  and 
government  regulation  of  others,  while  the  government  itself 
continues  to  be  controlled  by  the   forces   of   capitalism.     It 


AUTOCRATIC  GOVERNMENTS  49 

therefore  fulfills  but  one  of  the  conditions  called  for  by  ortho- 
dox socialism,  and  is  so  far  short  of  the  ideal  as  to  be  frankly 
rejected  by  many  Socialists  as  worse  than  the  system  of  private 
ownership.  It  cannot  be  denied,  however,  that  the  control  by 
the  German  Government  of  the  raw  materials  of  industry,  of 
transportation,  and  of  credit,  contributed  to  bring  about  a  con- 
dition of  economic  freedom,  in  the  sense  that  there  was  greater 
equality  of  opportunity  for  the  smaller  producers  than  wou-ld 
have  been  possible  had  great  trust  companies  similar  to  those 
of  Great  Britain  and  the  United  States  been  allowed  to  control 
the  market.  At  the  same  time  the  German  Government  adopted 
a  series  of  measures  looking  towards  a  more  equitable  distri- 
bution of  the  profits  of  industry;  laws  were  passed  providing 
for  sickness,  accident,  and  unemployment  insurance,  old  age 
and  maternity  pensions,  and  labor  exchanges,  with  the  result 
that  a  relatively  high  standard  of  living  prevailed  among  the 
working  classes  of  the  German  states.^  It  is  interesting  in  this 
connection  to  note  that  the  reaction  of  the  German  press  to 
the  "  nine  principles  of  labor  conditions "  contained  in  the 
treaty  of  peace  with  Germany,  which  set  forth  the  standard  of 
industrial  welfare  which  the  nations  represented  at  the  Con- 
ference desired  to  attain,  was  to  the  effect  that  Germany  had 
already  reached  the  stage  which  the  League  proposed  as  its 
goal. 

Effect  of  paternalistic  government.  That  good  measures, 
whether  relating  to  the  regulation  of  business  or  to  the  improve- 
ment of  the  conditions  of  the  working  classes,  may  be  put  into 
operation  by  a  government  from  other  motives  than  the  ab- 
stract welfare  of  the  people  is  no  argument  against  the  mea- 
sures themselves ;  but  it  is  important  to  note  that  the  effect  of 
those  measures  in  Germany  was  to  lessen  the  desire  of  the 
people  for  political  freedom  and  to  create  in  the  masses  a 
sense  of  confidence  in  their  government  which  its  true  charac- 
ter did  not  justify.     Bismarck  saw  clearly  that  the  progress  of 

1  The  subject  is  comprehensively  treated  in  a  volume  by  F.  C.  Howe, 
**  Socialized  Germany." 


50        POLITICAL  SYSTEMS  IN  TRANSITION 

social  democracy  could  not  be  checked  unless  the  legitimate 
causes  of  social  democracy  were  removed,  and  he  proceeded  to 
urge  the  enactment  of  laws  which  made  Germany  the  foremost 
paternalistic  state  of  the  world.  The  business  men  of  the  com- 
munity readily  acquiesced,  because  German  industry  did  not 
make  great  strides  until  after  the  formation  of  the  empire,  and 
they  had  never  been  accustomed  to  the  freedom  of  a  laissez 
faire  policy.  The  masses  acquiesced  because  they  found  in 
the  system  a  tolerable  measure  of  good-living  to  which  all 
theories  of  self-government  will  ever  be  a  secondary  considera- 
tion. The  result  of  this  subordination  of  political  freedom  to 
economic  prosperity  was,  however,  that  the  German  Govern- 
ment, without  consulting  public  opinion  or  giving  the  represen- 
tatives of  the  people  an  opportunity  to  state  their  views  in  ad- 
vance of  the  irrevocable  declaration  of  war,  could  count  upon 
the  support  of  a  docile  and  well-disciplined  citizen  body  un- 
accustomed on  the  one  hand  to  question  its  decisions  and  ac- 
customed on  the  other  to  accept  the  interference  of  the  Govern- 
ment in  its  private  affairs. 

Control  of  industrial  life.  At  the  same  time  the  Govern- 
ment had  at  its  disposal  much  of  the  clerical  machinery  neces- 
sary to  the  task  of  assuming  control  of  all  the  forces  of  the  na- 
tional life.  The  control  of  the  railway  system  was  already  in 
the  hands  of  the  Government,  which  had  not  only  built  strategic 
lines  for  military  purposes,  but  had  by  the  elimination  of  compe- 
tition and  the  introduction  of  a  unified  administration  prepared 
the  way  for  the  immediate  adaptation  of  the  system  to  the 
uses  of  war.  In  like  manner  the  mineral  resources  of  the 
empire  were  in  large  part  under  the  control  of  the  Govern- 
ment. Prussia  was  in  its  own  name  one  of  the  largest  pro- 
ducers of  coal,  so  that  it  was  not  difficult  for  the  German 
Government  to  direct  the  distribution  of  that  important  com- 
modity among  the  various  war  industries.  The  production  of 
iron  ore,  lead,  zinc,  copper  and  other  raw  materials  of  war 
industries  was  likewise  largely  under  governmental  regulation. 
It  is  true  that  even  the  most  democratic  state  might  undertake 


AUTOCRATIC  GOVERNMENTS  51 

to  bring  all  these  important  materials  under  its  direct  control ; 
our  interest  here  is  merely  in  observing  that  where  an  autocratic 
government,  which  has  in  its  hands  the  power  to  make  war  on 
its  own  initiative,  possesses  such  control,  it  has  a  distinct  ad- 
vantage in  the  rapidity  and  ease  with  which  it  can  adjust  it- 
self to  the  conditions  of  war. 

Advantages  of  an  irresponsible  government.  During  the 
early  years  of  the  war  the  German  Government  maintained  in 
many  respects  this  initial  advantage.  An  irresponsible  gov- 
ernment, not  subject  to  be  called  to  an  accounting  by  the 
Reichstag,  was  left  free  not  only  to  carry  out  its  military  poli- 
cies without  obstruction,  for  these  have  in  all  countries  been 
regarded  as  belonging  to  'a  sphere  above  civilian  interference, 
but  also  to  pursue  those  policies  in  which  diplomacy  as  well  as 
military  considerations  must  play  a  part.  While  popular  as- 
semblies in  Great  Britain  and  France  were  questioning  t"heir 
leaders  as  to  the  policies  they  were  pursuing  and  thus  dis- 
tracting their  attention  from  the  important  business  before  them 
without  contributing  constructive  suggestions,  the  German  Gov- 
ernment followed  without  interruption  the  plans  it  had  decided 
upon  in  secret  council.  In  the  meantime  the  confidence  of  the 
people  in  their  government  remained  practically  unshaken.  It 
may  well  be  possible  to  draw  a  distinction,  as  President  Wil- 
son did  in  his  address  to  Congress  calling  for  a  declaration  of 
war,  between  the  German  people  and  their  government  in  re- 
spect to  the  moral  responsibility  for  the  war,  in  that  "  it  was 
not  -with  their  previous  knowledge  or  approval  "  that  their 
government  acted  in  entering  upon  the  war;  but  while  ex- 
onerated as  an  accessory  before  the  fact,  the  German  people, 
with  few  exceptions,  whole-heartedly  supported  the  Government 
once  the  war  had  broken  out,  and  were  easily  persuaded  by  it 
to  become  an  accessory  after  the  fact. 

Counter-balancing  disadvantages.  But  this  freedom  of 
the  German  Government  from  control  by  the  representatives  of 
the  people  had  its  weaknesses  as  well  as  its  advantages,  and  a 
good  case  may  be  made  out  to  prove  that  it  was  the  rock  upon 


52        POLITICAL  SYSTEMS  IN  TRANSITION 

which  not  only  the  Government  but  the  empire  itself  was 
finally  wrecked.  In  an  article  entitled  *'  Military  Strategy  and 
Diplomacy,"^  Professor  Munroe  Smith  has  pointed  out  that 
the  control  of  the  Government  by  the  military  groups,  which 
was  possible  in  consequence  of  the  absence  of  ministerial  re- 
sponsibility, robbed  the  state  of  the  advantage  of  assuming  the 
defensive  in  entering  the  war.  The  diplomatist  naturally  seeks 
to  put  his  country  in  the  apparent  position  of  being  attacked, 
for  he  knows  that  the  fighting  spirit  of  the  country  can  be  best 
aroused  in  this  way  and  that  the  alliances,  or  at  any  rate  the 
friendships  of  the  state,  will  best  endure  under  such  circum- 
stances. The  militarist,  however,  has  chiefly  in  mind  the  ad- 
vantages of  attack  and  cannot  weigh  the  moral  forces  which 
may  be  set  in  motion  by  his  act  of  aggression  and  which  may 
in  turn  take  material  form  in  the  shape  of  allies  for  his  enemy. 
No  one  doubts  now  that  even  from  the  military  point  of  view 
Germany  blundered  in  not  balancing  against  the  advantages  of 
an  attack  through  Belgium  the  disadvantages  of  ranging  on  the 
side  of  her  enemy  the  outraged  consciences  of  millions  who 
might  otherwise  have  looked  upon  the  war  with  indifference. 
Belgium  became  a  symbol  which  raised  troops  whom  acts  of 
conscription  alone  could  not  have  raised.  Would  an  elected 
President  with  traditions  of  accountability  to  public  opinion, 
would  a  Cabinet  responsible  to  an  elected  assembly  have 
blundered  in  like  manner?  It  is  possible,  but  not  probable,  in 
view  of  the  actual  evidences  of  the  moral  restraint  imposed 
upon  democratic  governments  by  the  consciousness  that  their 
authority  is  held  not  by  inherent  right  but  as  a  public  trust. 

Diplomatic  blunders  similar  to  the  invasion  of  Belgium  were 
repeated  by  the  German  Government  during  the  progress  of  the 
war,  and  it  is  not  difficult  to  believe  that  the  faith  of  the  Ger- 
man people  in  their  government  was  somewhat  shaken  by  them. 
The  drastic  punishment  of  resistance  in  Belgium,  the  sinking 
of  the  Lnsitania  and  other  passenger  ships,  the  execution  of 
Edith  Cavell  and  of  Captain  Fryatt,  the  deportations  of  women 

1"  Political  Science  Quarterly,"  March,  1915. 


AUTOCRATIC  GOVERNMENTS  53 

from  Lille,  and  the  bombardment  of  London  and  Paris  from 
the  air  were,  indeed,  acts  which  the  army  staff  of  the  most 
democratic  country  might  have  ordered,  but  which  are  less 
to  be  looked  for  in  a  country  where  military  policies  are  sub- 
ject to  the  criticism  of  a  popular  assembly  in  closer  touch  with 
common  human  feeling.  With  the  renewal  of  the  submarine 
warfare  and  the  entrance  of  the  United  States  into  the  war 
the  full  fruits  of  the  military  control  of  diplomacy  began  to  be 
reaped.  New  chancellors  succeeded  to  the  old,  not  from  a 
recognition  of  the  legal  right  of  the  Reichstag  to  demand  the 
resignation  of  those  who  had  blundered  and  to  appoint  others 
amenable  to  its  wishes,  but  as  an  expedient  adopted  by  the 
Government  to  strengthen  the  confidence  of  the  people.  That 
confidence  was  retained  in  sufficient  strength  until  the  tide  of 
victory  turned  against  the  German  armies.  Autocracy  then 
failed  utterly  to  meet  the  supreme  test,  and,  after  fruitless  con- 
cessions at  the  last  moment,  collapsed  completely,  carrying 
the  entire  constitutional  framework  with  it.  It  must  be  left 
to  historians  of  the  future  to  estimate  how  far  the  German 
revolution  was  due  to  forces  from  within  the  empire  or  to 
pressure  from  without;  but  it  cannot  be  denied  that  the  auto- 
cratic military  organization  of  Germany  fought  its  war  in  a 
masterly  fashion,  and  so  long  as  it  met  with  temporary  suc- 
cess it  was  able  to  keep  popular  support  behind  it ;  had  it  suc- 
ceeded in  the  end  it  would  have  justified  itself  in  the  eyes  of 
the  people  and  delayed  indefinitely  the  democratic  revolt.  For- 
tunately the  odds  were  against  it  in  numbers  and  in  resources, 
and  with  defeat  came  the  disillusionment  of  the  people  —  a  dis- 
illusionment all  the  greater  because  of  the  supreme  confidence 
they  had  placed  in  their  rulers. 

The  new  German  Government.  The  permanence  of  the 
new  German  Government  brought  about  as  a  result  of  the 
revolution  of  November,  1918,  is  still  a  doubtful  question,  but 
it  has  now  laid  new  and  firm  foundations  upon  which  to  build, 
and  for  the  time  being  it  gives  promise  of  stability.  It  repre- 
sents a  new  order  in  Germany,  far  more  unlike  the  old  than 


54         POLITICAL  SYSTEMS  IN  TRANSITION 

has  yet  been  impressed  upon  the  public  in  foreign  countries. 
One  of  the  last  acts  of  the  Kaiser's  administration  was  a  de- 
cree of  October  28,  creating  ministerial  responsibility  on  the 
part  of  the  executive  to  the  Reichstag.  In  the  words  of  the 
decree  "  a  new  order  comes  into  force  which  transfers  the 
fundamental  rights  of  the  Kaiser's  person  to  the  people."  But 
the  crisis  was  too  serious  for  half-way  measures  to  satisfy. 
With  the  resignation  of  the  Kaiser  a  provisional  government 
was  set  up  consisting  of  the  leaders  of  the  radical  parties  in 
the  Reichstag,  which  promptly  decided  upon  the  election  of  a 
constituent  national  assembly  endowed  with  authority  to  draw 
up  a  new  constitution.  The  elections  took  place  on  January 
19,  1919,  and  resulted  in  a  victory  for  a  Republic  as  the  new 
form  of  government.  Universal  suffrage  without  restriction 
of  sex  was  adopted  and  the  system  of  proportional  representa- 
tion introduced.  The  latter  reform,  which  at  the  same  time 
did  away  with  the  unequal  distribution  of  seats  prevailing  in 
former  elections,  was  carried  out  after  the  usual  continental 
scheme  of  voting  by  lists.  Germany  was  divided  into  38 
constituencies,  each  returning  from  6  to  16  members.  The 
lists  were  made  up  by  the  several  political  parties  and  contained 
the  names  of  as  many  candidates  as  there  were  seats,  the 
names  being  arranged  in  order  of  priority  by  the  party.  Votes 
were  cast  not  for  individual  candidates  but  for  the  lists  of 
candidates,  and  in  proportion  to  the  strength  of  the  party  vote 
one  or  more  of  the  names  on  the  party  lists  were  declared 
elected,  beginning  with  the  more  important  names  at  the  top. 
This  method  insured  the  election  of  at  least  the  leaders  in  each 
of  the  more  important  parties.  The  elections  resulted  in  a  vic- 
tory for  the  Moderate  ("Majority")  Socialists  and  a  new 
party  of  advanced  Liberals  calling  themselves  the  Democrats. 
The  more  conservative  Catholic  Center  came  next,  with  the  radi- 
cal Independent  Socialists  and  the  National  Party  and  Ger- 
man People's  Party,  the  two  latter  consisting  of  adherents  of 
the  old  National  Liberal  and  Conservative  Junker  parties, 
bringing  up  the  rear. 


AUTOCRATIC  GOVERNMENTS  55 

The  problem  of  federalism.  The  debates  in  the  Convention 
at  Weimar,  which  undertook  the  establishment  of  a  new  consti- 
tution for  Germany,  revive  for  the  student  of  government  the 
critical  years  from  1 787-1 789  when  the  fate  of  the  American 
federal  republic  was  in  the  balance.  At  the  same  time  they 
throw  valuable  light  upon  some  of  the  present  problems  of 
Federal  Government.  Immediately  upon  the  abdication  of  the 
Emperor  separatist  tendencies  among  the  German  states  began 
to  manifest  themselves.  Should  Germany  continue  to  be  a 
federal  state,  and,  if  so,  should  Prussia,  its  largest  member, 
continue  to  dominate  the  federation?  The  draft  constitution 
prepared  by  Dr.  Preuss,  German  Secretary  of  the  Interior,  pro- 
posed that  Prussia  should  be  divided  up  into  a  number  of  au- 
tonomous states  representing  roughly  the  states  absorbed  by  the 
original  Prussia  in  181 5  and  1866.  A  unified  Prussia,  con- 
sisting of  more  than  half  the  population  of  the  entire  Republic, 
would  obviously  create  an  unstable  balance  of  power.  But  if 
Prussia  were  to  be  divided  up  to  help  to  equalize  the  member- 
ship of  the  federation,  the  other  German  states  which  had  been 
.granted  special  privileges  by  the  Constitution  of  1871  would 
be  called  upon  to  yield  them  up  to  the  central  government. 
Some  few  German  publicists  advocated  the  establishment  of  a 
unitary  Germany  which  would  abolish  state  lines  completely, 
but  the  proposal  did  not  meet  with  any  general  acceptance. 

The  decision  finally  reached  by  the  Assembly  was  in  favor 
of  maintaining  the  unity  and  federal  character  of  the  former 
empire.  A  National  (Federal)  Council  was  created,  supplant- 
ing the  former  Bundesrat,  in  which  the  states  were  given  re- 
presentation in  proportion  to  their  population.  Prussia  was 
permitted  to  remain  intact,  but  provisions  were  adopted  which 
sought  to  break  up  a  solid  Prussian  vote  by  placing  half  of  the 
Prussian  votes  at  the  disposal  of  the  Prussian  provincial  ad- 
ministrations. In  the  division  of  powers  between  the  central 
government  and  the  separate  states  a  far  wider  range  of 
jurisdiction  is  assigned  to  the  empire  ^  than  is  assigned  to  the 

^  The  term  Reich  is  still  used,  and  no  inconsistency  was  seen  in  mak- 


56        POLITICAL  SYSTEMS  IN  TRANSITION 

Federal  Government  in  the  United  States.  Indeed,  so  com- 
plete is  the  possible  control  which  the  empire  may  exercise 
over  the  life  of  the  country  that  Professor  Preuss  maintains 
that  the  empire  is  in  reality  a  unitary  state  preserving  the 
forms  of  a  federal  government.  Curiously  enough,  one  fea- 
ture of  federalism  abandoned  in  the  United  States  in  1789  still 
remains  in  the  new  German  constitution,  namely,  that  "  the 
laws  of  the  empire  shall  be  executed  by  the  state  authorities 
unless  otherwise  provided  by  national  law." 

Organization  of  the  Government.  The  National  (or 
Federal)  Assembly,  which  replaces  the  former  Reichstag,  dif- 
fers from  that  body  in  a  number  of  important  particulars.  The 
system  of  election  by  proportional  representation  is  provided 
for,  as  well  as  universal  suffrage  for  men  and  women  over  20 
years  of  age.  The  power  of  the  Assembly  over  legislation  be- 
comes paramount,  subject  only  to  a  veto  by  the  National  Coun- 
cil, which  can  be  overcome  by  a  two-thirds  majority  of  the 
Assembly.  A  striking  innovation  is  introduced  in  the  form  of 
a  national  referendum  on  federal  legislation,  which  can  be  taken 
either  upon  the  decision  of  the  President,  or  upon  petition  of 
one-twentieth  of  the  qualified  voters  when  one-third  of  the 
Assembly  demands  that  the  promulgation  of  the  law  be  de- 
ferred. Measures  may  be  initiated  by  the  people  upon  peti- 
tion of  one-tenth  of  the  qualified  voters,  but  in  such  cases  the 
Assembly  shall  first  pass  upon  the  bill,  and  if  it  act  favorably 
the  popular  vote  will  not  take  place.  Similar  provisions  for 
the  use  of  the  initiative  and  referendum  in  respect  to  consti- 
tutional amendments  are  introduced. 

The  President  of  the  Republic.  The  President  is  elected 
by  the  people  for  a  term  of  seven  years,  and  provision  is  made 
for  his  removal  by  popular  vote  upon  demand  of  a  two-thirds 
vote  of  the  National  Assembly.  A  negative  vote  of  the  peo- 
ple upon  the  question  of  removal  has  the  effect  of  dissolving 

ing  the  first  article  of  the  constitution  announce  that  "the  German 
empire  is  a  republic."  The  word  "commonwealth"  has  been  sug- 
gested as  a  more  descriptive  translation. 


AUTOCRATIC  GOVERNMENTS  57 

the  National  Assembly.  The  powers  of  the  President  re- 
semble those  of  the  President  of  the  United  States,  with  the 
difference  that  the  acts  of  the  President  of  the  German  Re- 
public require  for  their  validity  the  counter-signature  of  the 
Chancellor  or  of  the  other  Minister  within  whose  province  the 
act  falls.  In  consequence  the  President  is  relieved  of  respon- 
sibility and  the  extensive  powers  conferred  upon  him  are  ren- 
dered more  or  less  nominal.  Both  the  Chancellor  and  the 
Ministers  require  for  the  administration  of  their  offices  the  con- 
fidence of  the  Assembly,  and  each  of  them  must  resign  if  the 
Assembly  by  a  formal  resolution  withdraws  its  confidence.  A 
system  of  cabinet  government  is  thus  created  in  which  minis- 
terial responsibility  is  individual  rather  than  collective  as  in  the 
case  of  Great  Britain  and  France. 

The  protection  of  fundamental  rights.  Industrial  councils. 
In  respect  to  the  second  function  of  a  constitution,  the  de- 
termination of  the  relations  of  the  citizen  body  to  the  Govern- 
ment, a  "  bill  of  rights  "  is  drawn  up  which  contains  the  usual 
guarantees  of  equality  before  the  law,  of  freedom  of  speech 
and  of  the  press,  of  immunity  from  searches  and  seizures, 
of  freedom  of  Assembly  and  other  personal  rights.  Exception 
may,  however,  be  made  by  national  law,  so  that  it  is  not  clear 
what  will  be  the  actual  measure  of  individual  liberty  to  be 
enjoyed  by  the  German  citizen.  Besides  these  provisions  the 
Constitution  contains  a  number  of  details  regulating  the  "  com- 
munity life,"  including  marriage,  the  protection  of  motherhood 
and  of  children,  and  self-government  in  cities.  Separation  of 
church  &nd  state  is  provided  for,  and  general  principles  are 
laid  down  with  regard  to  education.  A  unique  section  dealing 
with  "  economic  life  "  lays  down  the  principles  of  freedom  of 
contract,  the  right  of  private  property,  the  expropriation  of 
landed  property,  where  necessary,  with  compensation,  the 
*'  socialization  "  of  certain  private  enterprises  by  transfer  to 
public  ownership,  and,  when  urgently  necessary  for  the  com- 
mon good,  the  combination  of  business  enterprises  into  auto- 
nomous bodies  in  which  employers  and  employees  shall  have 


58        POLITICAL  SYSTEMS  IN  TRANSITION 

a  share  in  the  management  and  the  administration  of  the  whole 
shall  be  conducted  for  the  common  good.  In  addition  an  im- 
portant step  is  taken  in  the  recognition  of  the  right  of  co- 
operative control  of  industry  by  both  employers  and  employees. 
Wage  earners  and  salaried  employees  are  to  be  represented  in 
local  workers'  councils,  organized  in  each  establishment,  as 
well  as  in  district  workers'  councils  in  each  economic  area, 
and  in  a  National  Workers'  Council.  By  adding  to  their  mem- 
bership representatives  of  the  employers  and  of  the  interested 
public  these  workers'  councils  become  "  economic  [industrial] 
councils,"  representing  all  substantial  vocational  groups.  The 
National  Economic  Council  at  the  top  of  the  system  is  made  in 
a  degree  a  legislative  body  by  the  requirement  that  drafts  of 
fundamental  laws  relating  to  social  and  economic  policy  shall 
be  submitted  to  it  by  the  Cabinet  before  introduction  into  the 
National  Assembly.  At  the  same  time  the  Economic  Council 
has  the  right  itself  to  propose  such  measures  for  enactment 
into  law.^ 

General  character  of  the  new  Constitution.  It  is  clear 
that  the  new  German  Constitution  is  a  document  of  funda- 
mental importance,  and  could  it  be  considered  apart  from  the 
record  of  Germany  during  the  years  of  the  war  it  would  be 
welcomed  with  acclaim  by  the  other  democratic  nations  of  the 
world.  Taken  at  its  face  value  it  not  only  represents  an  at- 
tempt to  establish  a  truly  democratic  form  of  government,  but 
it  contains  many  elements  of  intrinsic  worth.  In  organization 
it  seems  to  combine  both  the  promise  of  efficiency,  through  its 
provisions  for  cooperation  and  finality  of  decision  between  the 
several  departments  of  the  Government,  as  well  as  the  promise 
of  effective  popular  control  through  its  provisions  for  the  modi- 
fied use  of  the  initiative  and  the  referendum.  In  the  social  and 
economic  program,  set  forth  at  great  length,  it  proposes  to 

lA  scholarly  translation  of  "The  Constitution  of  the  German  Com- 
monwealth," by  W.  B.  Munro  and  A.  N.  Holcombe,  has  been  pub- 
lished by  the  World  Peace  Foundation.  The  word  "  commonwealth  " 
is  used  by  the  translators  as  the  present  equivalent  of  Reich. 


AUTOCRATIC  GOVERNMENTS  59 

reconcile  the  conflicting  demands  of  individualism  and  of 
socialism,  and  while  assuring  the  protection  of  the  economic 
liberty  of  the  individual  and  the  right  of  private  property  it 
seeks  to  regulate  both  in  the  interest  of  the  common  needs  of 
the  public  at  large.  Its  provisions  for  the  establishment  of 
industrial  democracy  closely  approximate  to  the  program  of  the 
British  Labor  Party  and  the  recommendations  of  the  Whitley 
Report.^  Can  it  be  regarded  as  a  final  break  with  the  old 
order,  and  the  repudiation  not  only  of  its  representatives  but 
of  its  political  principles?  Observers  from  without  may  hesi- 
tate to  recognize  the  value  of  so  sudden  a  conversion.  But  it 
must  be  remembered  that  the  opponents  in  Germany  of  the  old 
order  were  far  more  numerous  than  their  representation  in  the 
Reichstag,  by  reason  of  the  unequal  distribution  of  seats,  would 
indicate.  Will  the  new  constitution  receive  the  support  of  a 
substantial  majority  of  the  people  and  become  a  permanent  basis 
of  government?  The  outlook  is  not  without  hope.  During  the 
debates  of  the  Constitutional  Convention  the  great  body  of  the 
people  appeared  to  be  but  little  interested  in  the  task  under- 
taken. The  effects  of  generations  of  political  servitude  can- 
not be  overcome  in  the  course  of  a  single  year.  A  political 
consciousness  must  be  created  by  the  actual  practice  of  self- 
government.  But  there  is  good  promise  for  the  future  in  the 
instinctive  recognition  by  the  people  of  the  necessity  of  law 
and  order  and  in  the  sense  of  duty  to  the  State  so  carefully 
inculcated  by  their  former  rulers. 

The  Government  of  Austria-Hungary.  The  federal  char- 
acter of  the  Austro-Hungarian  empire  differed  in  essential 
respects  from  that  of  Germany.  It  consisted  of  a  loose  union 
between  two  large  states,  Austria  and  Hungary,  both  of  which 
were  unitary  in  form  although  containing  within  their  borders 
numerous  nationalities  of  alien  race  and  language.  The  joint 
government  of  the  Dual  Monarchy  was  limited  to  foreign  af- 
fairs, war,  and  finance,  and  was  conducted  by  means  of  a  legis- 
lature, consisting  of  delegations  from  the  two  states,  and  an 

^  Sec  below,  p.  98. 


6o        POLITICAL  SYSTEMS  IN  TRANSITION 

administration  consisting  of  the  emperor-king  and  ministers 
directing  the  three  departments  of  the  Government.  In  theory 
ministerial  responsibility  existed  in  the  joint  government  of  the 
dual  state  and  in  the  separate  governments  of  Austria  and 
Hungary;  but  in  practice  the  legislative  assemblies  were  able 
to  exercise  very  little  restraint  upon  the  administration.  This 
was  chiefly  due  to  the  fact  that  there  existed  a  multiplicity  of 
political  parties  and  factions,  representing  not  only  the  diver- 
gent economic  and  political  interests  of  the  people  but  also  the 
numerous  races  of  the  two  states  with  their  separate  nation- 
alistic claims.  The  result  was  that  the  empire,  instead  of  be- 
ing obliged  to  select  ministers  who  had  the  confidence  of  the 
representative  assemblies,  was  able  to  select  men  who  could 
succeed  best  in  playing  off  one  party  against  another  and  thus 
remain  themselves  in  large  measure  free  from  control.  The 
revolution  of  1918  took,  therefore,  from  the  start  a  separatist 
turn.  Czechoslovakia,  consisting  of  the  Austrian  provinces  of 
Bohemia  and  Moravia  and  the  Hungarian  province  of 
Slovakia,  declared  its  independence,^  as  did  also  Croatia, 
Slavonia,  and  Dalmatia,  which,  together  with  the  dependent 
provinces  of  Bosnia  and  Herzegovina,  joined  with  Serbia  and 
Montenegro  to  form  a  new  Jugo-Slav  state.  Hungary  then  set 
up  a  separate  republic,  leaving  Austria  proper  isolated. 

Dangers  attending  the  break-up  of  Austria-Hungary. 
The  polyglot  empire  thus  met  the  inevitable  doom  predicted  for 
it  long  before  1914;  but  it  is  of  no  little  interest  to  the  student 
of  government  to  note  that  evil  as  well  as  good  has  attended 
its  fall.  Four  new  and  distinct  states  with  their  rivalries  and 
jealousies  now  take  the  place  of  the  old  confederation,  and  al- 
ready there  are  signs  that  they  cannot  live  together  in  any  degree 
of  friendliness.  Until  the  last  year  of  the  war  it  was  the  con- 
viction of  many  well-informed  observers  that  the  true  solution 

lit  is  an  interesting  point  of  international  law  to  note  that  the  in- 
dependence of  this  state  was  recognized  by  the  United  States  before  it 
had  been  able  to  do  more  than  declare  its  desire  to  be  a  state  through 
a  national  committee  speaking  for  it  in  a  foreign  land. 


AUTOCRATIC  GOVERNMENTS  6i 

of  the  problem  of  the  Austro-Hungarian  nationalities  was  not 
the  complete  independence  of  the  distinct  communities,  but 
rather  autonomy  in  matters  of  local  government  together  with 
constitutional  rights  as  members  of  a  federal  empire.  It  was 
thought  that  autonomy  in  local  matters  would  suffice  to  meet  the 
fair  claims  of  national  groups  to  the  free  pursuit  of  their  own 
ideals  of  culture  in  matters  of  religion,  literature,  art,  festiv- 
ities, and  other  forms  of  self-expression;  while  on  the  other 
hand  the  subordination  of  those  groups  as  members  of  a 
federal  empire  would  tend  to  remove  the  barriers  of  suspicion 
and  discord  which  inevitably  arise  between  rival  neighboring 
communities,  and  would  facilitate  the  friendly  intercourse  of 
the  states  within  the  federation.  Such  a  federation  would,  it 
was  pointed  out,  make  impossible  the  creation  of  competitive 
tariffs  and  would  put  the  railways  and  the  ports  of  the  several 
states  at  the  common  disposal  of  all.  Mr.  H.  N.  Brailsford 
expressed  the  economic  aspect  of  the  situation  by  saying  that 
"  it  is  easy  to  denounce  Austria-Hungary  as  a  '  ramshackle 
Empire '  and  to  call  for  its  dismemberment,  but  the  more  one 
contemplates  the  strange  fact  of  the  union  of  these  many  races 
in  one  political  unit,  the  more  one  is  driven  to  the  conclusion 
that  there  is  a  soHd  and  natural  reason  for  their  combination. 
The  reason  is  geographical  and  economic."  ^ 

The  protection  of  minorities.  One  further  feature  of  the 
proposed  federation  of  the  races  of  Austria-Hungary  is  of 
special  interest  to  students  of  American  Government,  The 
great  problem  of  all  federal  states  where  there  is  any  large  and 
coherent  minority  with  separate  interests  of  its  own  is  to 
secure  the  protection  of  the  fundamental  rights  of  the  minority 
without  unduly  restricting  the  activities  of  the  local  govern- 
ments. In  the  United  States,  for  example,  the  14th  and  15th 
amendments  to  the  Constitution  protect  the  negro  in  his  rights 
of  life,  liberty,  property  and  suffrage  against  the  encroachment 
of  the  state  governments,  leaving  him  in  respect  to  less  im- 
portant rights  subject  to  the  local  law.    The  case  of  the  various 

1 "  A  League  of  Nations,"  p.  100. 


62        POLITICAL  SYSTEMS  IN  TRANSITION 

nationalities  of  Austria-Hungary  presents  a  striking  illustration 
of  the  need  of  such  guarantees,  owing  to  the  fact  that  scarcely 
anywhere  can  the  boundary  lines  of  nationality  be  drawn  so 
as  not  to  include  within  the  national  group  a  minority  of  an- 
other race.  It  was  proposed,  therefore,  that  not  only  should 
the  several  constitutions  of  the  autonomous  groups  contain  a 
guarantee  against  the  oppression  of  racial  and  religious  min- 
orities, but  that  the  Federal  Constitution  should  likewise  embody 
those  guarantees.  If  this  were  done,  "  Vienna  would  see,"  as 
Mr.  Brailsford  says,  "  that  the  Czechs  did  not  oppress  the 
Germans  in  Bohemia,  and  Budapest  would  be  vigilant  for  the 
Magyars  in  Transylvania."  ^ 

Conditions  imposed  by  the  Peace  Conference.  The  Peace 
Conference  at  Paris  was  fully  aware  of  the  difficulties  attend- 
ing the  recognition  of  the  independence  of  the  former  compo- 
nent parts  of  Austria-Hungary;  and  being  in  a  position  to 
dictate  terms  to  the  new  states  it  imposed  conditions  upon 
their  admission  into  the  family  of  nations.  Austria  itself, 
shorn  of  much  of  its  territory,  acknowledges  under  the  treaty 
that  the  obligations  looking  to  the  protection  of  minorities  are 
matters  of  international  concern  over  which  the  League  of 
Nations  has  jurisdiction.  She  assures  equality  before  the  law 
and  complete  protection  of  life  and  liberty  to  all  inhabitants 
of  Austria  without  distinction  of  birth,  nationality,  language, 
race,  or  religion,  together  with  the  right  to  the  free  exercise 
of  any  creed  and  to  the  free  use  of  any  language  in  public 
or  private,  with  reasonable  facilities  to  those  of  non-German 
speech  for  the  use  of  their  own  language  before  the  courts. 
Equal  opportunities  in  schools  and  other  educational  establish- 
ments are  promised,  and  in  districts  where  citizens  of  non- 
German  speech  exist  in  considerable  number  facilities  must  be 
given  for  the  instruction  of  the  children  in  their  own  language, 
and  a  due  share  of  the  public  funds  is  to  be  provided  for  the 
purpose.  The  treaty  with  Hungary  imposes  like  conditions, 
and  the  same  result  is  sought  in  the  case  of  Czechoslovakia 
1  Ibid.,  p.  107. 


AUTOCRATIC  GOVERNMENTS  63 

and  Jugoslavia  by  the  requirement  that  the  new  states  agree 
to  conclude  treaties  with  the  principal  allied  and  associated 
powers  for  the  protection  of  racial  and  religious  minorities. 

Difficulties  of  the  situation.  How  far-reaching  some  of 
these  demands  of  the  Conference  are,  and  how  difficult  is  the 
problem  with  which  Austria,  for  example,  is  faced,  assuming 
the  most  sincere  attempt  to  carry  out  her  obligations,  can  be 
gathered  by  a  comparison  with  the  policy  followed  by  the 
United  States  in  dealing  with  similar  questions.  Conditions 
are,  of  course,  essentially  different  in  the  United  States,  since 
the  country  developed  a  distinct  English-speaking  national  char- 
acter long  before  the  present  foreign-language  elements  came 
into  its  midst;  whereas  in  Austria  a^id  Hungary  the  diverse 
races  and  languages  have  been  so  long  settled  upon  the  soil 
that  they  have  acquired  prescriptive  rights  which  are  too  deep- 
seated  to  be  readily  abandoned.  Our  big  cities  have  their 
Italian  quarters  and  their  Polish,  Jewish  and  Hungarian 
quarters,  but  the  American  people  would  hear  with  amazement 
a  proposal  not  only  that  Italian  or  Polish  should  be  the  lan- 
guage of  the  court-rooms  and  the  medium  of  instruction  in 
the  public  schools  in  those  quarters,  but  that  the  administration 
of  those  matters  should  be  subject  to  the  supervision,  not  of 
New  York  or  of  Washington,  but  of  the  League  of  Nations 
sitting  as  an  international  executive  council. 

The  fall  of  autocracy  in  Russia.  The  breakdown  of  the 
Russian  autocratic  regime  during  the  war  was  due  partly  to 
political  and  partly  to  economic  problems.  The  Government  of 
Russia  enjoyed,  as  we  have  seen,  the  initial  advantage  of  be- 
ing able  to  reach  its  decisions  without  the  delays  incident  to 
parliamentary  control  and  of  being  able  at  the  same  time  to 
count  upon  the  prompt  obedience  of  the  people.  But  while 
sharing  this  advantage  with  Germany,  the  administrative  or- 
ganization of  the  Russian  Government  was  immeasurably  in- 
ferior to  that  of  its  opponent,  and  at  the  same  time  the  spirit 
of  national  unity  which  characterized  Germany  was  much 
weaker  in  Russia  and  the  response  of  the  people  was  less  dis- 


64        POLITICAL  SYSTEMS  IN  TRANSITION 

ciplined  and  intelligent.  Treason  in  the  Government  began  to 
manifest  itself  early  in  the  war,  due  largely  to  the  control  which 
Germany  had  obtained  over  the  business  life  of  the  country; 
but  it  was  not  successful  in  impeding  the  operations  of  the 
army  until  the  summer  of  1916.  In  the  meantime  the  need 
of  military  supplies,  which  had  been  felt  from  the  very  be- 
ginning, and  the  inadequacy  of  the  transportation  service  to 
distribute  food  to  the  centers  of  population  provided  the  oc- 
casion for  the  revolution  which  the  economic  and  political 
system  of  the  country  had  long  invited.  In  the  face  of  the 
defeat  of  its  armies  and  the  starvation  of  its  chief  city  Russian 
autocracy  was  unable  to  maintain  its  hold.  The  lesson  of  the 
war  with  Japan  in  1 904-1 905  should  have  been  a  warning  that 
autocracy  cannot  hope  to  survive  a  war  of  exhaustion  unless 
it  has  succeeded  in  winning  such  a  degree  of  loyalty  on  the 
part  of  its  subjects  as  to  lead  them  to  submit  to  the  yoke 
without  compulsion.  Where  the  German  Government  had  de- 
nied political  freedom  to  its  people,  it  had  at  least  granted 
them  an  economic  freedom  which  won  their  allegiance.  The 
Government  of  the  czar  attempted  to  carry  the  double  burden 
of  fighting  a  formidable  enemy  from  without  and  at  the  same 
time  maintaining  an  enforced  obedience  from  within. 

Political  importance  of  the  Russian  revolution.  So  com- 
plete has  been  the  transformation  of  Russian  political  institu- 
tions as  a  result  of  the  revolution  of  19 17  that  it  will  be  many 
years  before  it  will  be  possible  to  present  a  final  estimate  of 
the  situation.  But  the  lessons  of  the  Russian  revolution  even 
in  its  present  stages  are  of  tremendous  significance  not  only 
for  the  future  of  government  in  Russia  but  for  the  future  of 
government  in  all  the  countries  of  Euroj^e  and,  indeed,  of 
America  and  Asia  as  well.  Like  those  of  the  great  French 
Revolution,  its  doctrines  have  swept  like  a  flood-tide  over  the 
surrounding  countries,  and  though  the  waters  may  recede,  as 
did  the  waters  of  the  French  revolution  under  the  absolute 
government  of  Napoleon,  it  is  safe  to  predict  that  for  years  to 


AUTOCRATIC  GOVERNMENTS  65 

come  seeds  of  new  political  thought  will  be  found  to  have 
taken  root  in  what  would,  but  for  that  flood,  have  been  arid 
soil.  The  French  Revolution  gave  a  new  meaning  to  political 
liberty;  it  proclaimed  that  men  had  certain  rights  which  the 
State  had  not  given  him  and  which  the  State  could  not  take 
away.  Those  rights  were  the  fundamental  rights  which  be- 
longed to  human  nature  as  such,  and  in  respect  to  those  rights 
all  men  were  equal.  Other  rights  might  exist  under  sanction 
of  the  law,  such  as  the  ownership  of  great  estates,  but  being 
contrary  to  those  fundamental  rights  they  could  have  po  real 
value.  Now  it  is  not  difficult  to  point  out  the  fallacies  in- 
volved in  much  of  the  French  revolutionary  doctrine,  and  the 
excesses  committed  in  the  attempt  to  give  practical  application 
to  that  doctrine  will  ever  be  one  of  the  world's  tales  of  horror ; 
but  at  the  same  time  no  student  of  history  will  fail  to  recog- 
nize the  basis  of  truth  underlying  the  radical  theories,  and  to 
appreciate  the  extent  to  which  democratic  ideals  of  a  succeed- 
ing generation  were  built  up  upon  that  basis.^ 

The  heritage  of  the  new  government.  The  Russian  revolu- 
tion introduces  a  similar  situation  of  political  revolt  founded 
upon  acute  economic  distress ;  but  owing  to  the  progress  of  in- 
dustrial concentration  during  the  nineteenth  century,  and  to  the 
development  of  radical  plans  of  economic  reform  in  the  shape 
of  Socialism  and  of  Syndicalism,  the  Government  which  has 
emerged  from  the  revolution  is  organized  upon  an  industrial 
as  well  as  upon  a  territorial  basis.  In  analyzing  the  character 
of  the  new  Soviet  Republic  it  is  important  to  distinguish  be- 
tween the  organization  of  the  Government  as  a  legislative  and 
administrative  agency  and  the  political  principles  which  it  pro- 
poses to  put  into  effect.  The  organization  of  the  Government 
is  radically  different  from  the  familiar  systems  of  other  con- 
tinental countries,  but  it  is  not  necessarily  undemocratic,  and 
could  conceivably  be  applied  in  other  countries  which  utterly 

lAn  excellent  discussion  of  the  subject  may  be  found  in  C.  D. 
Burns,  "  Political  Ideals,"  Chap.  VII. 


66        POLITICAL  SYSTEMS  IN  TRANSITION 

repudiate  the  principles  by  which  those  who  control  it  are 
animated.  It  can  best  be  understood  by  a  reference  to  the 
institutions  of  local  self-government  in  Russia  before  the  war. 
The  local  mirs  and  the  volosts,  the  larger  zemstvos  in  the  prov- 
inces, and  the  municipal  dumas  still  appear,  like  stones  from 
a  demolished  edifice,  in  the  walls  of  the  new  political  struc- 
ture. 

Local  government  before  the  revolution.  Beginning  with 
the  smallest  unit  of  self-government,  the  village,  we  find  the 
village  mir  composed  of  the  peasant  householders  of  the  vil- 
lage, not  including  the  land-owners  as  such,  if  they  were  of 
the  nobility.  The  peasants  thus  formed  a  class  apart,  and  as 
they  constituted  more  than  three-fourths  of  the  population  they 
were  within  the  restricted  sphere  of  their  local  interests  al- 
most a  law  unto  themselves.  The  volost,  or  canton,  or  town- 
ship, was  the  next  highest  unit  of  government,  and  it  con- 
sisted of  a  number  of  mirs  with  an  assembly  composed  of 
delegates  elected  by  the  mirs.  It  is  here  that  we  note  the 
presence  of  that  characteristic  feature  of  Russian  Government 
which  is  carried  to  the  nth  degree  in  the  organization  of  the 
Soviets,  namely,  the  indirect  election  of  officials.  The  volost 
was  an  old  unit  of  government  given  new  administrative  and 
judicial  duties  under  the  reform  decrees  of  the  sixties. 
Through  its  assembly  it  brought  the  semi-independent  -mirs 
within  the  control  of  the  central  government ;  but  as  in  the  case 
of  the  mir  its  powers  were  very  limited,  and  it  was  more  an 
agent  of  the  central  government  than  an  organ  of  local  self- 
government.  Being  composed  solely  of  the  peasantry  it  em- 
phasized once  more  the  organization  of  the  people  by  distinct 
classes. 

The  next  larger  units  of  government  were  the  district  and 
the  province,  each  with  its  representative  assembly  known  as 
the  zemstvo.  The  provincial  assemblies  consisted  of  dele- 
gates from  the  district  assemblies  and  derived  all  their  powers 
from  the  latter  bodies.  Suffrage  for  the  district  zemstvo  was 
sharply  restricted  both  by  property  qualifications  and  by  the 


AUTOCRATIC  GOVERNMENTS  67 

indirect  election  of  the  delegates  of  the  peasantry  through  their 
volosts.  The  powers  of  the  zemstvos  were  in  theory  Hmited 
to  local  economic  interests,  but  it  proved  difficult  to  draw 
the  line  between  their  jurisdiction  and  that  of  the  central  gov- 
ernment. At  the  same  time  the  activities  of  the  zemstvos  were 
constantly  subjected  to  interference  from  the  provincial  gov- 
ernors, whose  consent  had  to  be  obtained  before  the  decisions 
of  the  zemstvos  could  be  carried  into  effect.  Similar  to  the 
zemstvos  in  the  rural  districts  were  the  municipal  dumas, 
which  were  elected  by  a  three  class  ("curia")  system  based 
upon  property  qualifications  and  bearing  a  resemblance  to  the 
electoral  system  for  the  lower  house  of  the  Prussian  Landtag.^ 
The  electoral  system  of  the  Duma.  In  the  case  of  the 
Duma  of  the  empire,  as  in  that  of  the  provincial  zemstvos, 
democracy  was  defeated  by  a  method  of  indirect  elections 
which  removed  the  voter  in  some  instances  as  many  as  four 
degrees  from  his  candidate.  Under  a  new  law  of  1907  rep- 
resentatives to  the  Duma  were  elected  by  a  series  of  electoral 
colleges  in  each  of  the  provinces,  which  were  in  their  turn 
elected  by  electoral  assemblies  representing  the  three  classes 
of  landed  proprietors,  townspeople,  and  peasants.  The  larger 
landed  proprietors  sat  in  these  assemblies  in  their  own  person 
and  were  thus  but  two  degrees  removed  from  their  candidate ; 
the  lesser  proprietors  combined  to  send  delegates  to  the  as- 
semblies, and  were  thus  three  degrees  removed  from  their 
candidate;  while  the  peasantry  elected  delegates  to  the  assem- 
blies through  the  intermediary  of  their  indirectly  elected 
volosts,  and  were  thus  four  degrees  removed  from  their  candi- 
date. The  urban  population  elected  delegates  directly  to  the 
colleges,  but  by  a  class  system  of  voting  which  gave  the  ad- 
vantage to  large  property  holdings.  Industrial  workers  were, 
like  the  peasantry,  specially  represented  by  delegates  to  the 
colleges  elected  on  the  basis  of  one  for  every  50  employees. 

1  Details  of  the  development  of  local  political  institutions  in  Russia 
before  the  revolution  may  be  obtained  from  a  brief  volume  by  Profes- 
sor Paul  Vinogradoff,  "  Self-Government  in  Russia." 


68        POLITICAL  SYSTEMS  IN  TRANSITION 

It  is  obvious  that  the  system,  without  actually  depriving  the 
citizen  of  a  vote,  rendered  that  vote  as  ineffective  as  possible 
against  the  influence  of  the  Government  in  the  election.^ 

Organization  of  the  new  Soviet  government.  A  knowl- 
edge of  the  representative  system  employed  for  the  various 
representative  bodies  in  Russia  before  1917  is  necessary  to  an 
understanding  of  the  peculiar  character  of  the  new  Soviet 
government.  By  comparison  with  the  American  electoral  sys- 
tem, where  the  individual  citizen  votes  directly  for  city,  county, 
state,  and  federal  officials,  the  Soviet  Constitution  continues  the 
indirect  methods  formerly  in  operation  in  Russia,  but  places 
them  upon  a  squarely  democratic,  or  rather  proletarian  and 
peasant  basis.  The  organization  of  the  Soviet  government  may 
be  best  understood  by  picturing  it  in  the  shape  of  a  huge 
pyramid  at  the  base  of  which  is  the  entire  citizen  body  of  the 
Republic.  Beginning,  as  in  the  description  of  Russian  self- 
government  before  19 17,  with  the  smallest  units  of  govern- 
ment, we  find  in  the  cities  "  Soviets  "  or  "  councils  "  composed 
of  deputies  of  the  industrial  workers  who,  as  we  have  seen 
above,  had  been  kept  as  a  class  apart  under  the  old  electoral 
system.  After  the  revolution  soldiers,  who  in  most  cases 
were  peasants,  were  admitted  to  the  organization,  and  we  hear 
of  the  Petrograd  Council  (Soviet)  of  Workmen's  and  Peas- 
ants' Deputies.  Corresponding  to  this  organization  in  the  cities 
is  the  village  soviet,  based  upon  the  old  village  mir,  which,  like 
the  organization  of  workmen  in  the  cities,  was  composed  of 
peasants  as  a  class  apart,  and  which,  with  the  complete  col- 
lapse of  all  central  authority,  immediately  began  to  assume 
new  powers.  It  is  upon  this  double  foundation  of  urban  and 
rural  Soviets  that  the  elaborate  superstructure  of  Soviet  gov- 
ernment has  been  built  up. 

Successive  congresses  of  local  Soviets.  The  Constitution 
of  the  Russian  Socialist  Federated  Soviet  Republic,  adopted 

lA  more  elaborate  explanation  may  be  found  in  an  essay  entitled 
"The  Representative  System  in  Russia,"  by  Professor  Paul  Milieu- 
koff,  in  "  Russian  Realities  and  Problems." 


•AUTOCRATIC  GOVERNMENTS  69 

July  10,  1918,  describes  (Article  III)  the  organization  of  the 
Government  beginning  with  the  central  body  and  descending  to 
the  local  bodies,  but  it  is  at  once  clearer  and  more  logical  if 
we  follow  the  reverse  order.  The  composition  of  the  indi- 
vidual soviet  is,  in  the  cities,  on  the  basis  of  one  deputy  for 
each  1000  inhabitants,  the  total  to  be  not  less  than  50  and 
not  more  than  1000  members.^  In  the  towns,  villages,  and 
hamlets  of  less  than  10,000  inhabitants  there  is  to  be  one 
deputy  for  each  100  inhabitants,  the  total  to  be  not  less  than 
3  and  not  more  than  50  deputies  for  each  settlement;  but  it 
is  expressly  provided  that  in  small  rural  settlements  all  ques- 
tions shall  be  settled  at  general  meetings  of  voters,  as  in  the 
village  mirs.  The  village  Soviets  send  representatives,  on  the 
basis  of  one  delegate  for  10  members  of  the  soviet,  to  the  rural 
congresses  of  Soviets,  which  correspond  to  the  former  volost 
assemblies.  In  turn  these  rural  congresses  of  Soviets  send 
representatives  to  a  county  congress  of  Soviets,  which  cor  re- 
ponds  to  the  old  district  zemstvo.  Again  in  their  turn  the 
county  congresses  send  representatives  to  the  provincial  con- 
gress, to  which  the  urban  Soviets  also  send  representatives. 
It  is  interesting  to  note  that  in  the  provincial  congress,  which 
is  the  first  body  in  which  delegates  from  both  urban  and  rural 
constituencies  meet,  representation  is  accorded  to  the  cities  on 
the  basis  of  one  for  each  2000  voters,  and  to  the  rural  districts 
on  the  basis  of  one  for  each  10,000  inhabitants.  Once  more, 
the  provincial  congresses  send  representatives  to  the  regional 
congress,  which  is  limited  to  500  members  for  the  entire  region, 
and  in  which  there  is  a  further  distinction  between  city  voters 
and  rural  inhabitants.- 

1  It  is  to  be  noted  that  the  elections  in  the  cities  are  conducted  by- 
factories  and  occupational  groups  (lawyers,  doctors,  teachers,  etc.) 
and  not  by  residential  precincts  and  wards.  In  the  country  districts 
the  divisions  remain  territorial  as  before,  but  the  population,  being 
agricultural,  needs  no  separate  trade  organization. 

2  The  reader  who  is  baffled  by  the  complexity  of  the  Russian  govern- 
mental structure  may  recall  and  make  comparisons  with  the  following 
subdivisions  of  the  United  States:  federal  court  circuits  embracing  a 


70        POLITICAL  SYSTEMS  IN  TRANSITION 

The  central  government  of  Russia.  The  next  step  leads 
us  to  the  All-Russian  Congress  of  Soviets  which  is  the  "  su- 
preme power  "  of  the  Republic.  This  national  legislative  body 
is  composed  of  representatives  of  the  urban  soviets  on  the 
basis  of  one  delegate  for  each  25,000  voters,  and  of  repre- 
sentatives of  the  provincial  congresses  on  the  basis  of  one  dele- 
gate for  each  125,000  inhabitants.  But  though  it  is  the  supreme 
power  of  Russia,  the  All-Russian  Congress  of  Soviets  is  not 
itself  the  actual  governing  power,  but  rather  the  controlling 
power  of  the  Government.  For  the  Congress  in  its  turn  elects 
the  All-Russian  Central  Executive  Committee  of  not  more  than 
200  members,  which  is  responsible  to  the  Congress  and  is  "  the 
supreme  legislative,  executive,  and  controlling  organ  "of  the 
Republic.  It  directs  the  activities  of  the  local  soviet  bodies 
and  coordinates  and  regulates  the  operation  of  the  Constitu- 
tion and  the  resolutions  of  the  Congress.  In  turn  the  Central 
Executive  Committee  creates  a  special  cabinet  known  as  the 
Council  of  People's  Commissaries,  which  is  entrusted  with  the 
general  management  of  the  a^airs  of  the  Republic,  and  which, 
subject  to  the  control  of  the  Executive  Committee,  may  issue 
decrees  and  orders  necessary  for  the  proper  conduct  of  govern- 
ment affairs.  The  Commissaries  stand  at  the  head  of  the  17 
commissariats  or  departments  of  government  corresponding  to 
the  departments  of  -administration  in  other  countries.  Each 
commissary  has  an  advisory  "  college  "  or  committee,  the  mem- 
bers of  which  are  appointed  by  the  Council  and  of  which  he 
is  the  president. 

Indirect  versus  direct  control  of  representatives.  Con- 
sidered as  a  purely  political  contrivance  the  organization  of 
the  Soviet  Republic  is  one  of  the  most  remarkable  schemes 
of  government  ever  adopted,  and  as  an  experiment  in  a  peculiar 
form  of  indirect  democracy  it  would  be  watched  with  the 

number  of  states,  the  states  themselves,  electoral  districts  for  mem- 
bers of  the  House  of  Representatives  embracing  a  number  of  coun- 
ties, electoral  districts  for  state  senators,  counties,  townships,  and 
cities. 


AUTOCRATIC  GOVERNMENTS  71 

greatest  interest  by  statesman  and  student  alike  were  it  not 
that  the  conditions  under  which  it  is  being  tried  out  make 
it  impossible  to  judge  of  its  merits  or  demerits.  To  an  Amer- 
ican who  is  accustomed  to  vote  directly  for  city,  county,  state 
and  federal  officials,  and  who  believes  that  by  this  means  he 
can  exercise  direct  control  over  them  and  call  them  personally 
to  account  for  their  actions,  it  will  come  as  a  surprise  to  ob- 
serve what  purports  to  be  popular  government  so  organized 
as  to  make  bureaucratic  control  almost  inevitable.  Putting 
aside  the  suggestion  that  it  was  actually  introduced  for  that 
purpose,  we  may  consider  an  argument  offered  by  its  supporters 
to  the  effect  that  "it  makes  the  highest  official  responsible 
to  the  individual  peasant  in  the  remotest  corner  of  the  country." 
Theoretically  this  is  true,  but  the  responsibility  is  made  effec- 
tive through  seven  or  eight  stages  of  indirect  control  super- 
imposed upon  indirect  control.  The  system  might  work  quite 
successfully  if  citizens  and  their  delegates  and  their  delegates' 
delegates  were  all  cogs  in  the  wheels  of  an  elaborate  mechan- 
ism, so  that  pressure  applied  at  one  end  of  the  system  would 
inevitably  be  felt,  in  however  small  a  degree,  at  the  other  end. 
But  elected  officials  are  after  all  human  beings,  and  even  as- 
suming the  highest  honesty  on  their  part  no  observer  of  the 
practical  workings  of  democracy  in  countries  where  it  has 
been  tried  out  can  have  any  great  faith  in  a  system  of  popular 
government  which  removes  the  electorate  by  so  many  degrees 
from  the  ultimate  governing  officials.^  Even  if  the  Russian 
people  were  a  unit  on  fundamental  principles  and  divided  by 
no  greater  differences  of  opinion  in  matters  of  daily  legisla- 
tion than  mark  the  two  great  political  parties  which  control 
the  United  States,  it  is  scarcely  conceivable  that  the  system  of 
government  provided  by  the  Soviet  Constitution  could  be  kept 
free    from  the  control   of   a  bureaucracy.     The   experiment, 

1  Before  1913  United  States  Senators  were  elected  by  the  legislatures 
of  the  several  States,  and  the  evils  which  attended  even  that  limited 
form  of  indirect  election  are  sufficiently  familiar  to  all  students  of 
politics. 


^2        POLITICAL  SYSTEMS  IN  TRANSITION 

were  the  circumstances  attending  it  not  so  tragic,  would  be 
one  to  which  the  attention  of  public  men  in  every  country 
would  be  earnestly  drawn. 

Distinction  between  the  Soviet  organization  and  Bolshe- 
vist principles.  It  is  important  to  distinguish  sharply  be- 
tween the  framework  of  government  provided  by  the  Soviet 
Constitution  and  the  political  principles  by  which  those  who 
framed  the  constitution  were  animated.  The  Bolsheviki,  who 
were  the  radical  wing  of  the  Social  Democratic  party/  con- 
trolled the  drafting  of  the  Constitution  and  their  theories  are 
written  into  it  in  the  Declaration  of  Rights,  which  forms 
Article  I  of  the  Constitution,  and  in  the  provisions  for  the  suf- 
frage contained  in  Article  IV.  The  Declaration  of  Rights 
calls  for  the  "  socialization "  of  land  by  the  abolition  of  all 
private  property  in  land  and  the  apportionment  of  the  land  as 
national  property  among  husbandmen  in  the  measure  of  the 
ability  of  each  to  till  it,  without  any  compensation  to  the  former 
owners.  In  like  manner  forests,  treasures  of  the  earth,  water 
power,  model  farms  and  agricultural  enterprises,  and  banks 
are  declared  to  be  national  property.  Factories,  mills,  mines, 
railways  and  other  means  of  production  and  transportation  are 
turned  over  to  the  control  of  the  workmen  subject  to  the  regu- 
lations of  a  Supreme  Soviet  of  National  Economy.  Article  II 
frankly  states  that  during  "  the  present  transition  period  *'  the 
Constitution  involves  the  "  establishment  of  a  dictatorship  of 
the  urban  and  rural  proletariat  and  the  poorest  peasantry  .  .  . 
for  the  purpose  of  abolishing  the  exploitation  of  men  by  men 
and  of  introducing  Socialism-,  in  which  there  will  be  neither 
a  division  into  classes  nor  a  state  of  autocracy."  At  the  same 
time  Article  I  provides  that  "during  the  progress  of  the  de- 
cisive battle  between  the  proletariat  and  its  exploiters,  the  ex- 

1  Considerable  divergence  has  arisen  in  the  interpretation  of  the 
name  "  Bolsheviki."  As  explained  by  Lenine,  the  term  refers  to  a 
"majority"  faction  in  the  Social  Democratic  Congress  in  1903.  This 
faction  later  became  extremely  radical,  and  although  no  longer  a 
majority  it  continued  to  retain  the  name. 


AUTOCRATIC  GOVERNMENTS  73 

ploiters  can  not  hold  a  position  in  any  branch  of  the  Soviet 
Government " ;  while  Article  IV  excludes  from  the  suffrage 
"  persons  who  employ  hired  labor  in  order  to  obtain  from  it 
an  increase  in  profits,"  persons  who  possess  an  income  de- 
rived from  invested  capital,  private  merchants,  trade  and  com- 
mercial brokers,  the  clergy,  and  other  obnoxious  persons. 

Federal  character  of  the  future  Soviet  Republic.  A  final 
point  of  no  little  interest  in  the  Constitution  of  the  Soviet  Re- 
public is  the  provision  made  for  the  subsequent  creation  of 
a  federated  state.  We  have  already  seen  that  the  organiza- 
tion of  the  Soviet  Government  introduces  a  new  division  into 
Russia  known  as  the  "  region."  The  Constitution  provides 
that  the  All-Russian  Congress  and  the  Central  Executive  Com- 
mittee shall  establish  boundaries  for  the  regional  soviet  unions, 
which  are  to  be  made  autonomous  in  cases  where  they  "  differ- 
entiate themselves  by  a  special  form  of  existence  [  ?  way  of  life, 
customs]  and  national  character."  Permission  is  granted  by  the 
Constitution  to  the  Soviets  in  the  different  parts  of  the  Republic 
to  decide  whether  or  not  they  desire  to  participate  in  the 
Federal  Government.  It  is  apparently  contemplated  that  dis- 
tinct peoples,  such  as  the  Lithuanians,  the  Letts,  the  Finns, 
the  Ukrainians,  the  Georgians,  and  others,  a  number  of  whom 
had  already  set  up  independent  governments  at  the  time  the 
Constitution  was  adopted,  shall  ultimately  become  distinct  auto- 
nomous members  of  a  Federated  Republic, — "  a  league,"  as  the 
Constitution  expresses  it,  "  free  and  voluntary,  and  for  that 
reason  all  the  more  secure."  The  Constitution  does  not,  how- 
ever, work  out  the  dividing  line  between  the  powers  of  the 
central  government  and  those  of  the  member  states. 


CHAPTER  IV 

COUNTRIES   WITH   DEMOCRATIC   GOVERNMENTS 

WE  may  now  turn  from  the  consideration  of  the  changes 
brought  about  in  the  political  institutions  of  those 
countries  whose  governments  were  to  a  greater  or  less  degree 
autocratic,  and  study  the  effect  of  the  war  upon  the  political 
institutions  of  two  of  the  great  democratic  states  of  Europe, 
Great  Britain,  and  France.  In  the  case  of  the  autocratic 
countries  the  war  completely  transformed  their  governmental 
systems.  Not  only  was  autocracy  driven  from  its  place  of 
power,  but  with  it  went  even  those  elements  of  popular  gov- 
ernment which  had  been  the  subservient  tool  of  autocracy. 
In  the  case  of  Germany  local  self-governing  institutions  sur- 
vived; in  the  case  of  Russia,  Austria,  and  Hungary,  they  too 
were  swept  away  by  the  high  tide  of  revolution.  By  contrast, 
the  great  democratic  countries  came  through  the  ordeal  with 
their  former  governmental  systems  structurally  intact.  France 
and  Italy  suffered  the  least  in  respect  to  changes  in  their  gov- 
ernments, owing  to  the  fewer  traditions  embodied  in  their  con- 
stitutions. Great  Britain,  with  older  traditions  of  free  gov- 
ernment, found  it  necessary  to  introduce  far-reaching  changes 
which  must  mark  for  all  time  a  turning  point  in  its  political 
history.  The  Defense  of  the  Realm  Act,  though  pointing  not 
forward  towards  democracy  but  backward  towards  autoc- 
racy, must  hereafter  take  its  place  for  the  student  of  history 
with  the  great  documents  like  Magna  Charta  and  the  Bill  of 
Rights,  which  are  landmarks  of  the  British  Constitution. 

Democracy  at  a  disadvantage  in  time  of  war.  Case  of 
Great  Britain.  We  have  seen  that  autocracy  possessed  an 
initial  advantage  in  the  beginning  of  the  war  by  reason  of  the 
ready  adaptability  of  its  political  system  to  the  complex  organ- 

74 


DEMOCRATIC  GOVERNMENTS  75 

ization  of  a  national  fighting  machine.  If  modern  war  is 
fgught  not  between  armies  but  between  peoples,  if  it  requires 
the  transformation  of  the  entire  economic  and  social  life  of  a 
nation,  so  that  processes  of  production  and  distribution,  hitherto 
left  to  the  operation  of  "  natural  "  laws,  must  be  minutely  regu- 
lated and  individuals  are  no  longer  to  be  free  in  the  choice  of 
their  pursuits,  it  is  clear  that  democracy  can  be  no  match  for 
autocracy  unless  it  temporarily  adopts  autocratic  methods. 
Popular  control  must  give  way  to  a  unity  of  command  which 
can  issue  orders  without  the  delay  of  discussion  in  Parliament, 
and  which  can  pursue  its  plans  without  being  called  to  account 
until  the  final  result  has  been  accomplished.  This  conversion 
of  a  democracy  into  an  autocracy  was  naturally  all  the  more 
difficult  in  a  country  such  as  Great  Britain  where  the  tradi- 
tion of  individual  liberty  was  strong  and  where  the  Government 
possessed  practically  no  agencies  for  the  new  work  which  it 
was  called  upon  to  do.  The  complete  unpreparedness  of  the 
British  Government  for  the  colossal  task  that  was  imposed  upon 
it  was  only  matched  by  a  corresponding  failure  on  the  part  of 
the  public  to  realize  the  extent  to  which  its  own  traditional 
rights  would  have  to  give  way  before  the  exigencies  of  a 
national  crisis.  Democracy  awoke  but  slowly  to  the  realiza- 
tion that  it  could  only  save  itself  by  abandoning  for  the  time 
the  very  principles  of  freedom  in  defense  of  which  the  battle 
had  been  begun. 

British  cabinet  government  and  war  policies.  The  pri- 
mary political  problem  before  the  British  Government  during 
the  course  of  the  war  was  to  secure  the  fullest  measure  of 
unity  of  control  and  of  unhampered  authority,  while  at  the 
same  time  it  had  to  maintain  the  confidence  of  Parliament  and 
of  the  people.  It  may  be  observed  in  passing  that  government 
by  Parliament  through  the  agency  of  a  responsible  ministry 
had  a  decided  advantage  in  this  respect  over  the  system  of 
divided  authority  prevailing  in  the  United  States.  We  shall 
later  see  in  detail  the  numerous  obstacles  placed  in  the  way  of  an 
efficient  war  administration  by  the  constitutional  checks  and 


76        POLITICAL  SYSTEMS  IN  TRANSITION 

balances  established  between  the  legislative,  executive,  and 
judicial  branches  of  the  American  Government.  Cabinet  gov- 
ernment, combining  in  the  same  hands  the  powers  of  the  execu- 
tive and  legislative  departments,  made  the  assumption  of  prac- 
tically absolute  power  an  easy  step.  The  control  of  Parlia- 
ment, exercised  normally  by  means  of  questions  and  interpel- 
lations, could  be  kept  in  reserve  and  brought  into  exercise  only 
when  there  was  a  general  feeling  that  the  Government  was  be- 
coming deficient  in  its  task.  So  long  as  the  Cabinet  could  re- 
tain the  confidence  of  Parliament  it  was  able  to  run  the  country 
with  as  free  a  hand  as  if  it  possessed  absolute  power  under 
the  Constitution.  There  were  no  constitutional  Hmitations  to 
restrict  its  authority  and  no  courts  to  question  the  validity  of 
its  decrees.  At  the  same  time  its  authority  extended  into  every 
corner  of  the  kingdom,  and  there  were  no  reserved  powers 
possessed  by  the  local  divisions  of  the  country  which  might 
limit  the  jurisdiction  of  the  central  government.  For  all  prac- 
tical purposes  the  voice  of  the  Cabinet  was  the  voice  of  democ- 
racy, while  its  hands  were  the  hands  of  absolutism. 

The  Liberal  Cabinet.  The  outbreak  of  the  war  found  a 
Liberal  Cabinet  in  office  supported  by  a  majority  in  Parliament 
consisting  of  the  Liberal  party,  which  of  itself  did  not  con- 
stitute a  majority  of  the  whole,  and  of  the  Irish  Nationalist 
and  Labor  parties.  Without  altering  its  Liberal  composition, 
the  Cabinet  entered  into  a  truce  with  the  opposition  Unionists, 
which  resulted  in  the  suspension  of  the  customary  practice  of 
parliamentary  interpellation  and  criticism,  and  enabled  the 
Cabinet  to  put  through  Parliament  a  large  number  of  emer- 
gency acts  without  the  delays  attendant  upon  discussion  and 
debate.  At  the  same  time  the  Cabinet  obtained  the  passage 
of  a  resolution  by  which  the  normal  "  parliamentary  initiative," 
under  which  individual  members  presented  their  bills,  was  dis- 
pensed with  in  favor  of  the  passage  of  legislation  desired  by 
the  Cabinet.  But  though  given  a  free  hand,  the  Cabinet  which 
had  proved  equal  to  the  tasks  of  peace  proved  unequal  to  those 


DEMOCRATIC  GOVERNMENTS  TJ 

of  war.  Dissatisfaction  began  to  be  expressed  in  and  out  of 
Parliament,  and  the  Unionist  leaders  insisted  that  they  could 
no  longer  refrain  from  criticism  unless  their  party  was  rep- 
resented in  the  Cabinet.  The  Prime  Minister  acquiesced,  and 
a  new  Coalition  Cabinet  was  created  on  June  3,  191 5. 

The  Coalition  Cabinet.  The  new  Cabinet  represented  the 
abandonment  of  the  traditional  system  of  party  government 
which  had  grown  up  in  Great  Britain  after  the  revolution  of 
1688,  and  which  had  become  by  custom  a  part  of  the  British 
Constitution.  Its  twenty-two  members  included  the  chief  polit- 
ical leaders  of  the  different  political  parties;  so  that  the  oppo- 
sition benches  were  henceforth  silent,  except  for  the  voices 
of  isolated  groups  of  radicals.  At  the  same  time  the  law,  or 
rather  the  convention,  of  the  Constitution  that  newly-appointed 
mmisters  must  resign  their  seats  and  stand  for  re-election  was 
set  aside,  in  order  to  avoid  the  inconvenience  of  holding  elec- 
tions at  so  critical  a  time.  But  the  Coalition  Cabinet,  while 
it  proved  to  be  more  efficient  than  its  predecessor,  failed  to 
give  satisfaction,  and  demands  were  heard  for  the  creation  of 
a  smaller  governing  body  which,  freed  from  the  responsibility 
of  directing  the  departments,  could  give  its  entire  time  to  the 
conduct  of  the  war.  The  result  was  that  in  November,  191 5, 
there  was  formed  within  the  Cabinet  a  smaller  body  of  six 
members,  known  as  the  "  War  Committee,"  which,  with  the 
assistance  of  a  military,  naval,  and  diplomatic  staff,  was  given 
general  direction  of  war  measures,  subject  to  a  limited  con- 
trol on  the  part  of  the  Cabinet  as  a  whole.  Thus  organized, 
the  Coalition  Cabinet  maintained  the  confidence  of  Parliament 
for  more  than  a  year,  and  succeeded  in  weathering  the  critical 
period  which  accompanied  the  introduction  of  conscription. 
But  again  criticism,  especially  from  the  influential  press,  called 
for  a  reorganization  of  the  administration,  and  in  the  presence 
of  a  proposal  from  the  Minister  of  Munitions,  Mr.  Lloyd 
George,  that  a  Council  of  War  be  formed  from  which  the 
Prime  Minister  was  to  be  excluded,  Mr.  Asquith  and  the  en- 


78        POLITICAL  SYSTEMS  IN  TRANSITION 

tire  Cabinet  resigned,  and  on  Dec.  lo,  191 6,  a  new  *'  War 
Cabinet"  under  the  leadership  of  Mr.  Lloyd  George  took  its 
place.^ 

The  War  Cabinet.  The  War  Cabinet  was  a  constitutional 
innovation  even  more  striking  than  the  Coalition  Cabinet.  In 
the  first  place  it  was  not  the  result  of  a  parliamentary  vote,  but 
of  an  agreement  between  the  leaders  of  the  parties,  entered 
into  at  the  dictation  of  the  Minister  of  Munitions  in  the  role 
of  the  man  most  essential  to  the  Government.  Further,  the 
War  Cabinet  not  only  abandoned  the  relationship  of  responsi- 
bility to  the  larger  body  of  cabinet  officers,  which  had  been 
assumed  by  the  War  Committee,  and  became  directly  responsi- 
ble to  Parliament,  but  it  at  the  same  time  cut  itself  loose  en- 
tirely from  the  active  direction  of  the  administration  and  exer- 
cised merely  a  supervisory  control  over  the  numerous  ministerial 
departments.  Though  nominally  responsible  to  Parliament,  the 
War  Cabinet  did  not  undertake  the  task  of  party  leadership 
in  the  House.  Its  members  attended  the  sessions  of  Parlia- 
ment only  on  special  occasions,  and  left  Parliament  to  discuss 
as  it  pleased  matters  over  which  it  had  no  control.  It  neverthe- 
less remained  in  sufficiently  close  touch  with  Parliament  to  be 
able  to  allay  distrust  should  it  arise.  The  ministers  in  charge 
of  the  administrative  departments  continued  to  represent  a 
coalition  of  the  parties,  but  their  relations  to  the  Cabinet  be- 
came somewhat  uncertain.  No  provision  was  made  for  their 
meeting  in  common  or  for  the  coordination  of  their  functions ; 
and  as  they  had  been  increased  to  the  number  of  eighty-eight 
there  were  frequent  conflicts  of  authority  among  them  which 
the  War >  Cabinet  was  called  upon  to  adjust.  A  further  diffi- 
culty lay  in  the  subordination  of  the  more  important  heads  of 
departments,  now  reduced  from  their  former  cabinet  rank,  the 
Secretaries  of  War  and  of  Foreign  Affairs,  and  the  First  Lord 
of  the  Admiralty,  to  the  smaller  cabinet  group  who  were  rather 

i-For  further  details  see  a  monograph  entitled,  "  British  War  Admin- 
istration," by  Professor  John  A.  Fairlie,  published  by  the  Carnegie 
Endowment  for  International  Peace. 


DEMOCRATIC  GOVERNMENTS  79 

directors  of  policy  than  skilled  administrators.  In  the  mean- 
time the  old  Liberal  leaders,  completely  overlooked  in  the  choice 
of  the  War  Cabinet  and  of  the  more  important  ministerial 
posts,  revived  the  Opposition  in  the  House  of  Commons,  and 
the  paradoxical  situation  was  at  times  brought  about  in  which 
Mr.  Asquith  from  the  Opposition  bench  came  to  the  rescue 
of  the  Government  which  had  ousted  him  and  forestalled  what 
might  have  been  votes  of  lack  of  confidence. 

Attitude  of  public  opinion  towards  the  War  Cabinet. 
Public  opinion,  as  represented  in  the  leading  organs  of  the 
press,  on  the  whole  acclaimed  the  new  Cabinet  and  acquiesced 
in  the  departure  from  constitutional  traditions  in  the  hope  that 
the  war  might  be  more  effectively  prosecuted  as  a  result  of 
the  change.  The  Conservative  press  naturally  looked  with 
favor  upon  a  Cabinet  in  which  its  party  was  represented  by 
three  members  out  of  five  at  a  time  when  it  possessed  but  a 
minority  in  the  House  of  Commons.  The  Northclifif  press  saw 
in  the  new  Cabinet  the  promise  of  that  unity  of  action  which 
it  had  long  urged  as  essential  to  the  winning  of  the  war.  On 
the  other  hand  several  of  the  leading  Liberal  papers  condemned 
both  the  surrender  of  Mr.  Lloyd  George  to  the  Conservative 
party  and  the  inherent  weaknesses  of  his  "  new  kind  of  govern- 
ment." ''  How  long,"  commented  '*  The  Nation,"  '*  Parliament 
will  tolerate  so  irregular  and  futile  a  separation  of  dignity  from 
responsibility,  and  from  the  elaborate  and  detailed  functions 
of  modern  government,  remains  to  be  seen."  ^  ''  The  Execu- 
tive Ministers,"  it  repeated  the  following  week,  "  are  not  Mr. 
George's  co-equal  colleagues,  but  subordinates  who  may  be 
summoned  to  discussions,  as  the  chief  clerks  in  a  large  firm 
may  be  summoned  to  consult,  one  by  one,  with  the  partners. 
It  is  stupefying  that  the  vital  decisions,  which  will  end  the 
war  or  prolong  it  indefinitely,  will  be  taken  by  these  four  or 
five  men  alone,  and  that  in  their  decisions  the  three  Ministers 
who  are  nominally  responsible  to  Parliament  for  foreign  policy, 
the  Army,  and  the  Navy,  will  have  only  a  consultative  voice." 

1  Issue  of  December  16,  1916. 


8o        POLITICAL  SYSTEMS  IN  TRANSITION 

By  contrast  an  able  British  publicist,  after  stating  that  *'  it  can- 
not be  disguised  that  democracy  has  been  a  failure  in  war  since 
the  beginning  of  history,"  asserted  that  Great  Britain  needed 
the  one-man  executive  provided  for  by  the  American  Constitu- 
tion. "  A  small  inner  Cabinet,  divorced  from  administration, 
is  a  great  improvement  compared  with  an  Executive  of  twenty- 
three  tired  men  who  have  to  look  after  administrative,  legisla- 
tive, and  party-political  matters  as  well,  and  who  in  addition 
have  to  waste  their  time  in  Parliament  .  .  .  Unless  Mr.  Lloyd 
George  is  able  to  dominate  his  colleagues  as  Chatham  did  in  his 
time,  unless  Great  Britain  possesses  virtually  a  one-man  Execu- 
tive, he  should  seek  for  power  which  will  make  the  Prime 
Minister  solely  responsible  by  law.  ...  It  is  better  that  war 
should  destroy  the  traditional  disorganization  of  democracy 
than  that  the  traditional  disorganization  of  democratic  govern- 
ment should  destroy  democracy  itself  and  the  British  race."  ^ 
Extension  of  the  legal  duration  of  Parliament.  Turning 
from  the  Cabinet  to  Parliament  itself,  of  which  the  Cabinet  is 
but  a  select  committee,  it  is  instructive  to  note,  in  comparison 
with  the  American  system  of  constitutionally  determined  tenure 
of  office,  how  easy  it  was  under  the  British  system  for  Parlia- 
ment to  extend  its  official  life  by  a  simple  legislative  act.  By 
the  Parliament  Act  of  191 1  the  former  maximum  term  of 
seven  years  was  reduced  to  five,  and  considering  the  circum- 
stances attending  the  passage  of  the  act  it  may  be  said  to  have 
become  at  once  a  part  of  the  British  Constitution.  But  the  very 
first  operation  of  the  new  rule  in  respect  to  parliamentary  elec- 
tions came  at  a  time  when  elections  could  not  be  held  without 
seriously  distracting  the  Government  from  the  conduct  of  the 
war.  Had  Great  Britain  possessed  a  constitution  as  rigid  as 
that  of  the  United  States  she  would  have  been  obliged  to  hold 
her  elections,  as  we  did  in  1918,  in  spite  of  any  inconvenience. 
But  possessing  an  elastic  constitution,  parts  of  which  are  no 
more  than  parliamentary  statutes  to  which  a  special  authority 

1  Politicus,  "  Many-Headed  Democracies  and  the  War,"  "  Fortnightly 
Review,"  May,  1918. 


DEMOCRATIC  GOVERNMENTS  8i 

is  attached  by  reason  of  their  intrinsic  importance,^  Great 
Britain  was  able  to  meet  the  emergency  without  hesitation  or 
discussion.  Successive  laws  were  passed  by  Parliament  extend- 
ing its  own  legal  existence,  and  the  elections  which  should  have 
been  held  in  1916  were  actually  not  held  until  1918,  when  the 
war  had  been  won  and  the  attention  of  the  party  leaders  could 
be  given  to  domestic  politics. 

Parliament  during  the  war.  We  have  seen  that  the  crea- 
tion of  a  Coalition  Cabinet  suspended  for  a  time  the  organized 
Opposition  whiph  is  a  characteristic  feature  of  Parliament. 
With  the  creation  of  the  War  Cabinet  the  Opposition  was  re- 
vived in  the  persons  of  the  Liberal  leaders  who  had  been  over- 
looked in  the  choice  of  the  new  government.  Their  hands 
were,  however,  tied  by  the  fact  that  in  every  instance  they 
were  obliged  to  measure  the  value  of  their  criticism  against 
the  danger  of  disorganizing  the  Government  at  a  time  when 
it  was  more  important  to  give  even  an  inefficient  government  a 
free  hand  than  to  risk  the  delays  incident  to  change.  Parlia- 
ment continued  to  discuss  war  policies,  but  with  the  separa- 
tion of  the  Cabinet  from  active  administrative  duties,  and 
with  the  appointment  of  a  large  number  of  ministers  who  did 
not  have  seats  in  Parliament,  there  was  frequently  no  respon- 
sible minister  present  to  reply  to  the  inquiries  of  Parliament 
into  the  measures  taken  by  the  Government.  As  Mr.  Bonar 
Law  expressed  it,  the  new  ministers  were  going  to  their  of- 
fices "  to  do  work,"  and  not  to  "  defend  "  what  they  did  in 
the  House  of  Commons  ;  upon  which  "  The  Nation  "  commented 
to  the  effect  that  the  whole  mechanism  of  government  was  now 
divorced  from  the  representative  system.  "  The  fiction,"  it 
said,  **  that  the  majority  of  the  House  has  a  tendency  and  a 
policy  is  abandoned.  The  minister  is  now  either  an  outsider, 
or  else  a  Member  who  is  not  expected  to  attend  its  sittings. 
He  works  exclusively  in  his  Department,  surrounded  by 
bureaucrats,  and  he  is  in  effect  an  untrained  bureaucrat  him- 
self.    What  survives  of  the  powers  of  the  House  is  merely  a 

1  See  above,  p.  27. 


82        POLITICAL  SYSTEMS  IN  TRANSITION 

recognition  of  its  right  to  hear  a  *  defense '  of  what  is  done. 
The  defense,  however,  no  longer  involves  any  personal  con- 
tact of  the  Minister  with  the  House."  ^  In  a  number  of  in- 
stances even  the  members  of  the  ministry  who  had  seats  in 
Parliament  were  absent  from  the  sittings,  and  under-secretaries 
were  the  only  persons  from  whom  Parliament  could  obtain  a 
"  vicarious  "  defense  of  what  was  being  done.  Mr.  Bonar  Law 
acted  as  a  sort  of  '*  sentry,  set  on  guard  to  protect  the  inner 
Cabal  from  Parliamentary  snipers,"  and  without  necessarily 
attending  the  sittings  of  the  War  Cabinet  and  having  only  a 
nominal  responsibility  for  what  it  did,  he  was  delegated  to 
undertake  the  defense  of  its  decisions  in  the  House.  "  It  is 
clear,"  said  **  The  Nation,"  **  that  the  Northcliff-George  revolu- 
tion means  nothing  less  than  the  suspension  of  Parliamentary 
government  itself." 

The  elections  of  1918.  The  elections  to  Parliament  held  in 
December,  1918,  are  of  particular  interest  as  illustrating  the 
political  dangers  incident  to  the  elastic  character  of  the  Brit- 
ish Constitution  in  respect  to  the  duration  of  Parliament.  If 
the  United  States  had  been  passing  through  as  serious  a  crisis 
in  1918  as  Great  Britain  was  passing  through  in  1916,  it  is  pos- 
sible that  we  might  have  envied  the  British  their  ability  to 
postpone  elections  without  the  formality  attending  an  amend- 
ment to  the  United  States  Constitution ;  but  at  the  same  time  the 
fixed  date  for  elections  in  the  United  States  made  it  impossible 
for  the  party  in  power  to  time  the  elections  so  as  to  secure  the 
greatest  political  advantage.  As  soon  as  the  armistice  had 
been  signed  the  Coalition  leaders  made  preparations  for  a 
general  election,  to  be  held  on  December  14th,  on  the  ground 
not  only  that  Parliament  had  outlived  its  legal  life,  but  that  in 
view  of  the  coming  peace  conference  it  was  necessary  for  the 
British  spokesmen  to  know  that  they  had  behind  them  a  House 
of  Commons  which  was  the  latest  expression  of  the  popular 
will.  The  old-line  Liberal  and  Labor  parties  both  objected  on 
the  ground  that  there  was  no  necessity  for  an  election,  since 

1  Issue  of  December  23,  1916. 


DEMOCRATIC  GOVERNMENTS  83 

the  people  would  support  the  War  Cabinet  in  the  making  of 
peace  with  the  same  confidence  with  which  they  supported 
it  during  the  war.  Moreover,  many  of  the  three  million  sol- 
diers on  foreign  soil  either  would  be  unable  to  vote  or  would 
vote  in  the  dark.  There  was,  it  was  said,  no  clear  issue,  but 
rather  a  call  upon  the  people  to  support  the  Government  which 
had  "  won  the  war,"  and  which  could  be  trusted  to  "  make 
Germany  pay  "  and  to  carry  into  effect  measures  of  reconstruc- 
tion in  the  form  of  better  housing  and  better  social  conditions. 
It  was  freely  charged  that  the  Prime  Minister  was  seeking  to 
secure  himself  in  power  for  a  longer  term  by  calling  for  a  vote 
of  personal  confidence  at  a  time  when  the  public  mind  was  more 
intent  upon  securing  the  fruits  of  victory  than  upon  weighing 
carefully  the  policies  which  the  Government  would  pursue  in 
the  days  of  peace  to  come.  A  striking  feature  of  the  elec- 
tions was  the  small  percentage  of  registered  voters  who  ap- 
peared at  the  polls. 

Call  for  reform.  The  elections  were  marked  by  a  triumph 
for  the  Coalition  government,  but  a  triumph  secured  under 
conditions  which  directed  serious  attention  to  the  electoral  re- 
form known  as  proportional  representation.  For  the  first  time 
in  British  political  history  a  formal  government  list  of  candi- 
dates was  put  forth  and  the  full  pressure  of  the  Coalition 
leaders  brought  to  bear  against  their  opponents.  Candidates 
stood  for  the  Coalition  without  abandoning  their  party  affilia- 
tions. Loyalty  to  the  Coalition  constituted  a  government 
"  coupon  "  of  credentials,  and  Tories  who  supported  the  Coali- 
tion were  **  couponed  "  into  the  seats  of  the  Anti-Coalition  or 
'*  Asquith "  Liberals ;  while  in  other  instances  Coalition 
Liberals  were  elected  by  Tory  voters.  The  result  of  the  cross- 
ing of  the  issue  of  loyalty  to  the  Government  with  the  old 
party  policies,  and  of  the  three-  and  four-cornered  contests  due 
to  the  presence  of  the  old-line  Liberal  and  the  Labor  candi- 
dates, was  that  the  Coalition  obtained  87  per  cent,  of  the  candi- 
dates with  only  56  per  cent,  of  the  votes.  The  Unionists  ob- 
tained some  380  members  from  about  five  million  votes,  while 


84        POLITICAL  SYSTEMS  IN  TRANSITION 

two  million  and  a  quarter  Labor  votes  obtained  less  than  60 
members,  and  Liberalism  with  a  million  and  a  quarter  votes  ob- 
tained but  26  members. 

In  consequence  of  these  inequalities  between  party  repre- 
sentation and  voting  strength  there  has  been  a  renewed  de- 
mand for  a  reform  of  the  electoral  system.  The  "  Speakers' 
Conference,"  in  presenting  the  report  which  was  made  the 
basis  of  the  new  Franchise  Act  of  1918,^  recommended  that 
the  old  single  member  constituencies  should  be  merged  into 
larger  constituencies  which  should  return  a  number  of  mem- 
bers in  accordance  with  a  plan  of  proportional  representation. 
The  House  of  Commons  rejected  the  proposal.  The  House 
of  Lords,  however,  strongly  favored  it,  and,  while  failing  to 
secure  its  incorporation  into  the  bill,  succeeded  in  having  a 
clause  adopted  providing  for  the  appointment  of  commissioners 
to  prepare  a  plan  of  proportional  representation  for  the  elec- 
tion of  100  members  in  certain  town  and  county  areas  combined 
into  constituencies  returning  from  three  to  seven  members. 
At  the  same  time  proportional  representation  was  adopted  in 
respect  to  university  constituencies  returning  two  or  more 
members.  The  support  of  the  proposal  by  the  conservative 
membership  of  the  House  of  Lords  and  its  defeat  by  the 
Conservatives  in  the  House  of  Commons  shows  a  division  of 
opinion  either  as  to  the  effects  of  the  measure  in  protecting 
minorities,  or  as  to  the  possibility  of  the  Conservative  party 
being  in  the  minority  in  the  near  future.  The  program  of  the 
Manchester  Liberal  Federation,  published  on  May  26,  19 19, 
calls  for  a  House  of  Commons  to  be  elected  by  proportional 
representation  for  a  term  not  exceeding  five  years  and  not  to 
be  dissolved  before  the  expiration  of  that  period  except  after 
a  special  resolution  passed  by  the  House  itself.  But  on  the 
other  hand  it  is  urged  by  even  so  progressive  a  paper  as  the 
"  New  Statesman  "  ^  that  proportional  representation  can  only 
be  introduced  at  the  sacrifice  of  the  essentially  democratic  sys- 

1  See  below,  p.  93. 

2  April  19,  1919- 


DEMOCRATIC  GOVERNMENTS  85 

tern  of  by-elections,  which,  by  indicating  the  changes  of  public 
opinion,  is  of  greater  value  than  a  more  accurate  reflection  of 
the  state  of  mind  of  the  electors  at  a  given  moment. 

Proposals  of  reconstruction.  What  is  to  be  the  future  of 
parliamentary  government  in  Great  Britain?  On  all  sides  it  is 
agreed  that  the  dictatorial  power  of  the  War  Cabinet  must  be 
surrendered  to  Parliament,  but  there  is  considerable  difference 
of  opinion  as  to  the  relations  henceforth  to  be  established  be- 
tween the  Cabinet  and  Parliament.  A  Machinery-of-Govem- 
ment  Committee  of  the  Ministry  of  Reconstruction  has  pre- 
sented an  important  report  in  which  it  describes  the  essential 
functions  of  the  Cabinet  as  consisting  of  the  determination  of 
the  policies  to  be  presented  to  Parliament,  the  supreme  control 
of  the  national  executive  in  accordance  with  the  policy  pre- 
scribed by  Parliament,  and  the  continuous  coordination  and 
delimitation  of  the  activities  of  the  several  departments  of 
state.  It  advocates  that  the  Cabinet  should  be  reduced  to  a 
smaller  body  of  ten  or  twelve  members  in  place  of  the  twenty 
or  more  members  of  1914.  At  the  same  time  the  number  of 
the  ministerial  departments  is  to  be  reduced  according  to  a 
scheme  which  distributes  the  business  of  the  Government  into 
ten  main  divisions,  with  occasional  subdivisions,  bearing  a  gen- 
eral resemblance  to  the  ten  executive  departments  in  the  Na- 
tional Government  of  the  United  States.  The  Committee, 
moreover,  recommends  that  the  reality  of  parliamentary  control 
be  restored  over  the  country's  finances,  and  that  parliamentary 
committees  should  be  constituted  to  watch  over  the  activities 
of  the  departments. 

Further  suggestions  from  various  sources  are  of  less  practi- 
cal value,  such  as  the  proposal  that  the  solidarity  of  the  Cabi- 
net should  be  broken  up  by  making  individual  ministers  re- 
sponsible to  Parliament  and  removable  by  a  vote  of  want  of 
confidence.  Comparison  is  also  made  with  the  French  com- 
mittee system,  which,  in  spite  of  the  inconveniences  attached 
to  its  frequent  changes  of  membership,  does  in  fact  make  of 
the  Chamber  of  Deputies  a  working  body  which  can  not  only 


86        POLITICAL  SYSTEMS  IN  TRANSITION 

criticise  the  work  of  the  administrative  departments  but  con- 
tribute valuable  constructive  advice  to  the  Government.  It  is  a 
frequent  comment  of  American  writers  that  the  unified  system 
of  cabinet  government  in  Great  Britain  possesses  singular  ad- 
vantages in  point  of  efficiency  over  the  lack  of  coordination  and 
the  duplication  of  functions  exhibited  in  the  American  Federal 
Government.  We  shall  consider  this  question  in  detail  later, 
but  it  may  be  observed  here  that  the  Federal  Congress  has  never 
been  reduced  to  the  humiliating  status  now  held  by  the  British 
Parliament.  If  Parliament  is  to  be  restored  to  its  former  posi- 
tion of  dignity,  it  must  be  made  more  than  a  critical  onlooker 
in  legislation.  The  mere  power  to  overturn  cabinets  must 
ultimately,  with  the  break-up  of  the  two-party  system,  render 
the  British  Constitution  dangerously  unstable,  unless  it  be  ac- 
companied by  the  sense  of  responsibility  which  results  from  a 
knowledge  of  the  practical  alternatives  to  the  policies  criticised. 
Substantive  war  legislation.  Turning  from  the  changes  in 
the  organization  of  the  British  Government  brought  about  by 
the  war  to  the  substantive  legislation  adopted  to  meet  the  suc- 
cessive emergencies  with  which  the  country  was  faced,  we  may 
distinguish  between  legislation  of  a  positive  character,  having 
in  view  the  control  of  all  the  resources  of  the  country  for  the 
more  effective  prosecution  of  the  war,  and  legislation  of  a 
negative  or  prohibitory  character,  encroaching  upon  constitu- 
tional rights  hitherto  immune  from  control.  In  both  instances 
traditional  principles  of  British  Government  were  set  aside  and 
new  rules  introduced  to  which,  but  for  the  emergency  which 
called  them  forth,  the  term  "  revolutionary  "  could  fitly  be  ap- 
plied. The  legislation  of  a  positive  character  adopted  during 
the  course  of  the  war  leads  us  into  economic  and  social  fields 
of  study  which  are  outside  the  scope  of  this  volume ;  but  at  the 
same  time  such  legislation  bears  sufficiently  upon  the  prob- 
lem of  government  to  warrant  consideration  of  it  in  so  far  as 
it  called  for  the  creation  of  new  political  agencies  of  control,  or 
ahered  the  fundamental  relations  previously  existing  between 
the  state  and  the  industrial  life  of  the  citizen  body. 


DEMOCRATIC  GOVERNMENTS  87 

Control  over  industrial  life.  It  was  but  natural  that  a 
country  which,  like  Great  Britain,  had  pursued  a  traditional 
policy  of  laisses  faire  in  relation  to  production  and  distribu- 
tion, should  be  led  at  the  outset  to  adopt  voluntary  methods  in 
the  readjustment  of  its  industrial  system  to  the  demands  of 
war.  If  the  production  of  the  necessities  of  war  could  be  in- 
creased and  distribution  facilitated  by  the  mere  appeal  to 
patriotism,  there  would  be  no  need  to  resort  to  governmental 
machinery  which  would  have  to  be  specially  created  for  the 
occasion.  Moreover,  the  full  measure  of  the  demands  which 
the  war  was  to  make  upon  the  country  dawned  but  slowly 
upon  the  Government  and  the  public  alike.  In  consequence  it 
is  possible  to  mark  off  a  series  of  successive  stages  in  the  in- 
creasing control  of  the  British  Government  over  production,  dis- 
tribution, and  exchange.^  It  is  interesting  to  observe  that  the 
dates  of  these  stages  correspond  approximately  to  the  political 
stages  which  have  been  referred  to  above.  From  a  Liberal 
Cabinet  working  under  a  party  truce,  the  Government  passed 
to  a  Coalition  Cabinet  in  June,  191 5,  and  again  to  a  smaller 
War  Cabinet  in  December,  1916.  In  like  manner  the  control 
of  the  government  over  industrial  life  proceeded  from  tenta- 
tive measures  of  control  over  the  essentials  of  national  exist- 
ence to  a  complete  mobilization  of  industrial  resources  which 
could  be  brought  to  bear  upon  the  production  of  military  and 
naval  supplies,  and  finally  to  more  stringent  measures  extend- 
ing to  industries  indirectly  connected  with  the  war  and  to  the 
production  and  consumption  of  food  supplies.  The  experi- 
ence of  Great  Britain  in  these  matters  proved  of  great  value  to 
the  United  States  when  faced  with  similar  problems ;  and  it  is 
only  when  read  in  the  light  of  the  lessons  learnt  from  Great 
Britain  that  the  rapidity  with  which  the  United  States  adjusted 
its  industrial  life  to  the  demands  of  the  war  can  be  properly 
understood. 

1  The  subject  is  treated  in  detail  in  a  volume  by  Professor  H.  L. 
Gray,  "War  Time  Control  of  Industry;  the  Experience  of  England," 
which  has  been  freely  drawn  upon  in  the  three  following  paragraphs- 


88        POLITICAL  SYSTEMS  IN  TRANSITION 

Government  control  of  the  railways.  The  first  important 
step  taken  by  the  Government  on  the  outbreak  of  the  war  was 
the  assumption  of  control  over  the  railway  system.  On  August 
5th  the  Government  placed  the  administration  of  the  railways 
in  the  hands  of  a  committee  of  railway  managers 
with  the  President  of  the  Board  of  Trade  as  chairman.  In 
accordance  with  a  previous  agreement  the  compensation  to  be 
made  to  the  owners  was  to  be  fixed  by  arbitration,  and  as  a 
result  of  this  action  the  Government  undertook  to  pay  to  the 
companies,  together  with  the  new  receipts,  the  sum  by  which 
the  new  receipts  of  the  railways  while  under  government  con- 
trol should  fall  short  of  the  net  receipts  for  the  corresponding 
period  of  1913.  The  railways  were  thus  guaranteed  the 
profits  which  they  had  been  obtaining  in  the  period  immediately 
preceding  the  war. 

Munitions  of  war.  The  next  important  problem  to  engage 
the  attention  of  the  Government  was  the  necessity  of  increasing 
the  production  of  military  and  naval  supplies.  The  Defense 
of  the  Realm  Act  had  authorized  the  military  authorities  to 
take  over  the  output  of  any  factory  or  workshop  in  which  arms, 
ammunition,  or  warlike  stores  were  manufactured,  and  a  later 
amendment  conferred  the  additional  authority  to  take  over  the 
output  of  "  any  factory  or  workshop,  or  any  plant  thereof,"  and 
to  require  the  factory  to  do  work  in  accordance  with  directions, 
which  might  go  so  far  as  to  restrict  the  work  done  in  one  fac- 
tory in  order  to  increase  the  work  in  another.  A  Ministry 
of  Munitions  was  created  in  June,  191 5,  and  a  Munitions  of 
War  Act  was  passed  which  was  a  final  and  decisive  step  in  the 
control  of  the  state  over  industry.  Net  profits  were  fixed, 
which  might  exceed  by  no  more  than  one-fifth  the  net  profit 
before  the  outbreak  of  the  war.  By  later  regulations  the  prices 
of  iron,  steel  and  copper  were  fixed,  and  priority  regulations 
were  adopted  securing  to  the  various  industries  their  essential 
supplies  in  the  order  of  war-time  importance.  The  control  of 
the  production  of  coal  proved  difficult  chiefly  because  of  the 
problem  of  meeting  the  demands  of  the  Miners'  Federation, 


DEMOCRATIC  GOVERNMENTS  89 

which  not  only  insisted  upon  increased  wages  to  meet  the  in- 
creased cost  of  living,  but  refused  to  come  under  the  control 
exercised  by  the  Government  in  other  industries  and  threatened 
industrial  revolt  when  attempt  was  made  to  put  pressure  upon 
them.  In  the  presence  of  an  impending  strike  in  November, 
19 16,  the  Government  took  possession  of  the  mines  in  South 
Wales,  and  on  March  i,  1917,  the  remaining  coal  mines  of  the 
country  were  taken  directly  under  the  control  of  the  state.  A 
new  department  was  created  to  administer  the  mines,  and  a 
Controller  of  Coal  Mines  was  appointed. 

The  Government  and  Labor.  Intimately  bound  up  with  the 
problem  of  government  control  over  the  railways,  munition 
plants,  and  coal  mines,  was  the  question  of  the  adjustment  of 
the  conditions  of  labor.  In  the  case  of  the  railways,  which  were 
directly  under  government  control,  a  "  truce  "  was  concluded 
with  the  two  large  unions,  by  which  a  scheme  of  conciliation 
worked  out  in  191 1  came  into  effect,  subject  to  six  weeks'  notice 
to  terminate.  Readjustments  of  wage  schedules  took  place  at 
intervals,  and  strikes  which  had  been  threatened  were  post- 
poned accordingly.  In  August,  19 17,  the  Government  was 
forced  to  apply  the  law  declaring  a  strike  illegal  until  resort 
had  been  had  to  the  arbitration  of  the  Minister  of  Labor.  In 
the  case  of  the  munition  factories  which  were  not  under  direct 
government  control,  the  Munitions  of  War  Act  of  191 5  provided 
for  the  compulsory  arbitration  of  disputes  and  introduced  a 
system  which  made  it  a  condition  of  securing  new  employment 
that  the  worker  should  obtain  from  his  last  employer  a  ''  leav- 
ing certificate.''  ^  On  one  occasion  a  local  union  called  a 
strike  in  violation  of  the  provisions  of  the  act,  but  the  strike 
was  repudiated  by  the  central  union,  and  the  Government  felt 
strong  enough  to  arrest  the  leaders  of  the  strike  and  thus 
brought  it  to  a  prompt  end.  In  the  case  of  the  coal  mines,  as 
has  been  said  above,  the  Miners'  Federation  refused  to  allow 

1  So  bitter,  however,  was  the  opposition  of  the  labor  unions  to  these 
"leaving  certificates"  that  provision  was  subsequently  made  for  their 
abolition,  which  was  accomplished  on  October  15,  1917. 


90        POLITICAL  SYSTEMS  IN  TRANSITION 

the  compulsory  arbitration  features  of  the  Munitions  of  War 
Act  to  be  extended  to  them,  and  threats  of  strikes  were  fre- 
quent until  the  Government  assumed  direct  control.^ 

The  Defense  of  the  Realm  Act.  The  war  legislation  of  a 
negative  or  prohibitory  character  is  of  great  political  interest 
because  of  its  encroachment  upon  the  fundamental  personal 
rights  of  British  citizenship.  It  had  for  its  general  object  the 
prevention  of  interference  with  the  Government  in  the  conduct 
of  the  war  and  the  enforced  cessation  of  acts  which,  whether 
done  with  deliberate  intent  or  not,  might  give  aid  to  the  enemy. 
On  November  2^,  1914,  a  Defense  of  the  Realm  Consolidation 
Act  was  passed,  combining  and  amending  two  previous  acts 
and  conferring  upon  the  King  in  Council  the  power  to  "  issue 
regulations  for  securing  the  public  safety  and  the  defense  of 
the  realm."  These  regulations  might  authorize  the  trial  by 
court  martial,  or  in  the  case  of  minor  offenses  by  courts  of 
summary  jurisdiction,  and  the  punishment  of  persons  commit- 
ting offenses  against  the  regulations.  Special  reference  was 
made  to  regulations  designed  to  prevent  persons  from  com- 
municating with  the  enemy  or  obtaining  information  for  that 
purpose,  to  secure  the  safety  of  the  national  forces  and  ships 
and  means  of  communication,  to  prevent  the  spread  of  false 
reports  or  reports  likely  to  cause  disaffection  to  the  Government, 
and  otherwise  to  prevent  assistance  being  given  to  the  enemy 
or  the  successful  prosecution  of  the  war  being  endangered. 
This  act,  popularly  known  as  DORA,  from  the  initial  letters  of 
its  title,  was  supplemented  on  the  following  day  by  the  Regula- 
tions authorized,  which  went  into  details  with  regard  to  the  ob- 
jects sought  by  the  act. 

Scope  of  the  Act.  The  Defense  of  the  Realm  Act  with  its 
Regulations  struck  down  with  a  single  blow  the  personal  liber- 
ties and  rights  of  property  which  have  been  held  as  the  most 
sacred  tradition  of  the  British  Constitution.     In  the  first  place 

1  Further  details  may  be  obtained  from  a  recent  study  of  "  British 
Labor  Conditions  and  Legislation  during  the  War,"  by  M.  B.  Hammond, 
published  by  the  Carnegie  Endowment  for  International  Peace. 


DEMOCRATIC  GOVERNMENTS  91 

it  deprived  the  citizen  of  his  right  of  personal  liberty,  in  author- 
izing any  person  acting  under  the  military  and  naval  authorities 
to  arrest  without  warrant  any  person  "  whose  behavior  is  of 
such  a  nature  as  to  give  reasonable  grounds  for  suspecting" 
that  he  had  acted  or  was  about  to  act  in  a  manner  prejudicial 
to  the  public  safety  or  the  defense  of  the  realm.  Moreover,  the 
military  authorities  could,  upon  mere  suspicion  and  without 
proof  of  any  kind,  require  any  private  citizen  to  reside  where 
they  pleased  and  to  report  himself  to  them  whenever  they 
thought  fit.  They  could  stop  any  citizen  as  he  walked  the 
streets  and  compel  him  to  answer  questions,  even  though  by 
so  doing  he  might  incriminate  himself.  In  the  second  place 
freedom  of  speech  and  of  the  press  were  both  brought  under 
the  control  of  the  Government  by  the  regulations  designed  to 
prevent  the  spread  of  reports  likely  to  cause  disaffection.  Cen- 
sorship of  the  press  had  not  existed  in  Great  Britain  since  1694 
when  the  licencing  act  of  1662  was  repealed ;  and  the  freedom 
of  the  press  meant  of  course  only  the  absence  of  censorship,  for 
there  had  always  been  restrictions  upon  the  press  imposed  by 
the  law  of  libel,  of  sedition,  and  of  treason.^  By  the  Regula- 
tions the  military  authorities  had  it  in  their  power  to  "  punish 
with  penal  servitude  for  life  any  journalist  who  speculates  as 
to  the  plan  of  campaign  of  the  British  or  French  forces,  and 
with  six  months'  imprisonment  if  he  criticises  the  dietary  or  ac- 
commodation of  the  new  recruits."  ^  So  sweeping  were  the 
terms  of  the  law  that  every  newspaper  editor  practically  acted 
at  his  peril  in  publishing  any  information  whatever,  and  no  dis- 
cussion of  "  supposed  plans  "  by  military  experts  was  permis- 
sible. In  the  third  place  the  Act  and  the  Regulations  author- 
ized searches  and  seizures  without  warrant  on  the  mere  ground 
that  the  military  authorities  had  "  reason  to  suspect "  that  any 
house  or  other  premises  were  being  used  "  for  any  purpose  or 
in  any  way  prejudicial  to  the  public  safety  or  the  defense  of  the 
Realm,"  or  that  anything  found  therein  was  being  used  for 

1  See  above,  p.  26. 

2Baty  and  Morgan,  *'War:  Its  Conduct  and  Legal  Results,"  p.  112. 


92         POLITICAL  SYSTEMS  IN  TRANSITION 

the  said  purpose,  including  newspapers  and  type  or  printing 
plant  where  there  had  been  a  contravention  of  the  regulations 
relating  to  the  press.  No  longer  was  the  Englishman*s  home 
his  castle,  no  longer  was  he  free  to  criticise  his  government  with 
even  the  best  of  intentions,  no  longer  was  he  free  to  come  and 
go  as  he  pleased. 

Military  law  extended  to  civilians.  The  above  restrictions 
were  stringent  enough  even  considering  the  extraordinary- 
emergency  that  called  them  forth.  But  what  was  perhaps 
severest  of  all  was  the  extension  of  military  law  to  the  entire 
citizen  body.  The  Act  of  November  2"],  1914,  in  authorizing 
the  Regulations  abolished  trial  by  jury  in  favor  of  courts- 
martial  and  courts  of  summary  jurisdiction  and  denied  the 
writ  of  habeas  corpus.  At  the  time  of  the  passage  of  the  act 
the  question  was  raised  by  Viscount  Bryce  in  the  House  of 
Lords  "  whether  the  British  subject  is  not  entitled,  as  he  al- 
ways has  been  in  times  past,  to  have  the  constitutional  pro- 
tection of  being  tried  in  a  civil  court  when  there  is  a  civil  court 
there  to  try  him."  In  past  times  military  law  had  always  been 
limited  to  the  armed  forces  of  the  state ;  it  was  here  extended 
so  as  to  treat  every  citizen  ''as  if  he  were  a  person  subject  to 
the  military  and  had  on  active  service  committed  "  the  offense. 
On  March  16,  191 5,  an  amendment  to  the  act  was  adopted 
giving  the  accused  the  right  to  demand  a  jury  trial,  but  no 
provision  was  made  to  secure  his  release  from  custody,  nor 
was  he  given  on  acquittal  any  right  of  action  for  malicious 
prosecution  or  for  false  imprisonment.  These  provisions  may 
compare  unfavorably  with  the  less  drastic  action  taken  by  the 
Congress  of  the  United  States  when  confronted  with  a  similar 
problem ;  but  it  must  be  remembered  that  the  situation  in  Great 
Britain  was  far  more  critical  in  respect  to  espionage  than  in 
our  own  country. 

Problems  of  reconstruction.  It  is  impossible  within  the 
limits  of  these  pages  to  deal  at  further  length  with  the  steps 
taken  by  Great  Britain  to  adapt  her  political  institutions  and 
industrial  life  to  the  demands  of  the  war,  valuable  as  are  the 


DEMOCRATIC  GOVERNMENTS  93 

comparisons  which  these  steps  offer  with  those  taken  by  the 
United  States  under  similar  conditions.  We  must  now  turn 
to  a  brief  survey  of  the  problems  of  reconstruction  faced  by 
Great  Britain  and  mark  out  some  of  the  probable  lines  of  de- 
velopment. What  new  democratic  forces  have  been  released 
by  the  war?  To  what  extent  are  they  organized  for  effec- 
tive action?  What  is  their  program  of  national  and  local  re- 
form ?  Can  this  program  be  fitted  into  the  existing  political  and 
industrial  organization,  or  must  radical  changes  take  place 
before  it  can  be  introduced? 

The  extension  of  suffrage.  The  political  basis  for  a  new 
era  of  reconstruction  was  laid  on  February  6,  1918,  when  the 
Representation  of  the  People  Act  was  adopted,  removing  the 
last  restrictions  of  sex  and  property  from  British  suffrage.  A 
man  now  votes  because  he  is  a  citizen,  not  because  he  possesses 
a  certain  amount  of  property,  however  limited  that  amount  may 
be.  This  principle  would  in  itself  have  logically  demanded  the 
enfranchisement  of  women,  had  not  the  services  they  were 
rendering  in  the  various  fields  of  war  work  also  made  it  im- 
possible for  Parliament  to  deny  them  an  equality  of  political 
rights.  The  restriction  that  women  must  be  over  thirty  years 
of  age  is  an  anomaly  explained  by  the  fact  that  the  women 
largely  outnumber  the  men,  but  it  is  so  inconsistent  as  a  logical 
proposition  that  its  repeal,  together  with  the  limited  property 
qualification  imposed  upon  women,  cannot  but  be  a  matter  of 
time.  While  thus  extending  the  suffrage  the  act  at  the  same 
time  removes  a  number  of  political  inequalities  which  existed 
under  the  oM  system.  Plural  voting  is,  however,  in  part  an 
exception,  and  it  is  still  possible  for  a  man  to  vote  in  a  con- 
stituency where  he  occupies  premises  for  business  purposes  as 
well  as  in  the  constituency  where  he  resides,  and  to  vote  in  the 
double  capacity  of  university  graduate  and  citizen.  A  redis- 
tribution of  seats  was  provided  for,  with  a  resulting  gain  to 
the  cities  whose  population  had  increased  out  of  all  proportion 
to  that  of  the  counties.  With  the  limitation  of  plural  voting 
to  two  constituencies  the  old  practice  of  polling  on  different 


94        POLITICAL  SYSTEMS  IN  TRANSITION 

days  in  different  localities  was  abolished  in  favor  of  holding 
all  elections  on  a  single  day. 

The  new  Labor  Party.  The  second  striking  feature  of  the 
political  heritage  of  the  war  is  the  appearance  of  a  stronger 
and  better  organized  Labor  party.  We  cannot  discuss  here  the 
possible  effect  which  this  third  party,  now  become  formidable, 
may  have  upon  the  cabinet  system  of  government,  which  has 
been  generally  regarded  as  a  stable  and  effective  form  of  gov- 
ernment only  when  Parliament  was  composed  of  two  more 
or  less  evenly  balanced  political  parties.  The  principles  of  the 
Labor  party  are,  however,  of  great  importance  in  view  of  its 
increasing  strength.  Prior  to  the  war  the  Labor  members  in 
Parliament,  having  won  42  seats  in  the  general  elections  of 
1910,  formed  a  separate  and  independent  group,  but  **  they 
were  not  a  party,  in  the  accepted  sense  of  the  word,  and  some 
of  them  had  not  shaken  off  their  allegiance  to  the  historic 
parties."  ^  The  Labor  organization  was  a  federation  of  local 
and  national  societies  rather  than  a  "  national  popular  party." 
The  new  Labor  party,  however,  makes  its  appeal  to  a  wider 
circle  of  voters  not  connected  with  trade  union  organizations 
but  in  sympathy  with  the  ideals  of  the  party.  In  the  elections 
of  1918,  as  a  result  of  the  prominence  given  to  the  issues  bear- 
ing upon  the  terms  of  peace,  the  Labor  party,  while  gaining 
sixty  seats,  lost  from  Parliament  three  of  its  most  important 
leaders,  including  Mr.  Henderson,  its  chief  organizer.  Its 
parliamentary  representation,  moreover,  was  composed,  with 
but  one  exception,  of  trade  unionist  officials,  the  realization  of 
the  ideal  of  a  national  popular  party  appealing  to  brain  workers 
and  hand  workers  alike  being  thus  postponed.  On  the  basis  of 
proportional  representation  the  party's  success  would  have  been 
considerately  greater,  since  it  polled  over  two  and  a  quarter 
million  votes. 

Its  reconstruction  program.  The  program  of  the  Labor 
party  is  best  set  forth  in  a  Draft  Report  on  Reconstruction 

1  Arthur  Henderson,  "The  Aims  of  Labor,"  p.  17,  where  a  sketch 
of  the  growth  of  the  Labor  Party  may  be  found. 


DEMOCRATIC  GOVERNMENTS  95 

prepared  by  a  sub-committee  of  the  party  executive  and  sub- 
mitted to  the  annual  conference  of  the  party  for  further  dis- 
cussion.^ The  report  describes  in  detail  the  "  four  pillars  of  the 
house  "  which  Labor  proposes  to  erect.  The  first  of  these  is 
the  establishment  of  a  ''  national  minimum,"  that  is,  a  general 
standard  of  living  for  all  the  workers,  which  shall  insure  to 
them  "  all  the  requisites  of  a  healthy  life  and  worthy  citizen- 
ship." As  part  of  this  policy  the  program  imposes  upon  the 
Government  the  obligation  to  find  suitable  employment  in  pro- 
ductive work  for  all  men  and  women,  and  advocates  the  adop- 
tion of  a  system  of  social  insurance  against  unemployment. 
The  second  ''  pillar  "  is  a  more  radical  proposal  in  the  form  of 
a  demand  for  the  democratic  control  of  industry.  The  Labor 
party  not  only  calls  for  "  effective  personal  freedom  "  as  a  first 
condition  of  democracy,  as  well  as  complete  political  rights  in 
the  form  of  an  even  more  liberal  suffrage  law  and  the  abolition 
of  the  privileged  House  of  Lords,  but  calls  for  "  democracy  in 
industry "  as  well.  It  demands,  therefore,  the  progressive 
elimination  of  the  "  private  capitalist "  and  the  introduction  of 
a  "  scientific  reorganization  of  the  nation's  industry  ...  on  the 
basis  of  the  common  ownership  of  the  means  of  production." 
The  proceeds  of  industry  are  to  be  shared  ''among  all  who 
participate  in  any  capacity  and  only  among  these."  In  the 
case  of  railways,  mines,  and  electrical  power  plants,  the  pro- 
gram calls  for  immediate  nationalization ;  and  the  existing  con- 
trol of  the  Government  over  the  importation  of  wheat  and 
other  commodities  and  the  centralization  of  the  purchase  of 
raw  materials  is  to  be  continued. 

The  third  and  fourth  "  pillars  "  consist  in  new  schemes  of 
taxation  and  in  plans  for  the  use  of  the  surplus  wealth  of 
the  country  for  the  common  good.  The  system  of  taxation 
must  not  encroach  upon  the  prescribed  national  minimum  stan- 
dard of  life,  nor  must  it  involve  a  protective  tariff,  nor  a  tax- 
ation of  the  necessities  of  life,  nor  indirect  taxes  interfering 
with  production  or  commerce.     Rather  it  must   include  the 

1 "  The  Aims  of  Labor,"  Appendix  II. 


96        POLITICAL  SYSTEMS  IN  TRANSITION 

direct  taxation  of  incomes  above  the  necessary  cost  of  family 
maintenance,  a  levy  on  capital  to  pay  off  the  national  debt, 
taxes  on  the  unearned  increment  of  land,  and  death  duties 
(inheritance  taxes)  based  upon  a  maximum  amount  which  a 
person  should  be  able  to  leave  by  way  pf  provision  for  his 
family.  At  the  same  time  the  surplus  wealth  of  the  nation,  ob- 
tained from  the  nationalization  of  mines  and  of  the  instruments 
of  production  and  from  the  taxation  of  excess  profits,  is  to  be 
distributed  in  the  form  of  pensions  and  of  better  educational 
facilities  for  all.  As  can  readily  be  seen,  the  Labor  party  thus 
takes  common  ground  with  the  Socialists  on  many  points,  and 
without  using  the  name  or  adopting  the  orthodox  "  class  war- 
fare "  principles  of  Socialism,  it  looks  for  the  support  of  the 
moderate  wing  of  the  Socialist  group.  Considering  the 
strength  of  the  party  and  the  possibility  that  within  the  coming 
decade  it  may  obtain  a  majority  in  Parliament  and  come  to  con- 
trol the  Government,  Americans  cannot  but  view  with  interest 
its  success  in  winning  popular  support  outsid^  of  the  ranks  of 
organized  labor.^ 

Program  of  the  Ministry  of  Reconstruction.  Early  in  the 
war  the  British  Government  realized  that  steps  should  be 
taken  to  provide  for  the  period  of  reconstruction  after  the  war. 
The  Coalition  Cabinet  entrusted  the  study  of  reconstruction 
problems  to  a  small  Secretariat  attached  to  a  committee  of  the 
Cabinet.  Sub-committees  of  the  Cabinet  committee  were 
formed  to  deal  with  the  following  questions:  agricultural 
policy,  demobilization  of  the  army,  acquisition  of  powers,  coal 

1  It  must  be  noted,  however,  that  the  program  of  the  Labor  party 
has  not  received  the  support  of  a  large  number  of  influential  persons 
in  the  labor  movement.  Many  such,  indeed,  dissent  vigorously  from 
the  "  policy  of  the  Fabian  Society  and  of  Mr.  Sidney  Webb "  which 
it  embodies,  and  consider  that  the  program,  though  "  eminently  prac- 
tical in  its  proposals,"  is  nevertheless  "  vitiated  by  the  fact  that  it 
turns  for  help  always  to  the  State,  and  ignores  or  underestimates  the 
vital  forces  of  economic  organization  which  exist  and  act,  in  the  main, 
independently  of  the  State."  G.  H.  D.  Cole,  in  the  "  Dial,"  November 
30,  1918. 


DEMOCRATIC  GOVERNMENTS  97 

conservation,  aliens,  forestry,  relations  between  employers  and 
employed,  and  women's  employment.  As  the  war  became  more 
and  more  prolonged  and  the  disturbance  of  the  normal  condi- 
tions of  industrial  and  social  life  became  greater  and  greater, 
making  it  clear  that  reconstruction  must  mean  something  much 
more  constructive  than  a  mere  return  to  pre-war  conditions,  the 
War  Cabinet  created  in  March,  19 17,  a  new  committee  under 
the  chairmanship  of  the  Prime  Minister,  composed  of  mem- 
bers of  Parliament,  of  representatives  of  labor,  of  men  of  busi- 
ness, and  of  experienced  social  workers.  New  sub-commit- 
tees were  appointed  to  deal  with  the  following  questions :  adult 
education,  civil  war-workers  demobilization,  acquisition  of  land, 
machinery  of  government,  local  government,  and  a  ministry  of 
health;  while  the  problems  of  housing,  unemployment,  physi- 
cal training,  juvenile  employment  and  apprenticeship,  the  sup- 
ply of  raw  materials,  and  shipping,  were  likewise  considered  by 
the  committees. 

A  further  step,  however,  was  yet  to  be  taken  by  the  Govern- 
ment, and  in  July,  191 7,  a  Ministry  of  Reconstruction  was 
created.  The  reason  for  this  step  was  that  the  existing  re- 
construction committee  had  no  responsible  connection  with 
Parliament  except  through  the  Prime  Minister  whose  atten- 
tion could  not  be  given  to  its  work,  and  at  the  same  time  had 
no  effective  contact  with  the  ministers  responsible  for  the  great 
departments  of  the  administration.  The  functions  of  the  new 
minister  were  "  to  consider  and  advise  upon  the  problems  which 
may  arise  out  of  the  present  war  and  may  have  to  be  dealt 
with  upon  its  termination,  and  for  the  purposes  aforesaid  to 
institute  and  conduct  such  enquiries,  prepare  such  schemes, 
and  make  such  recommendations  as  he  thinks  fit."  The  minis- 
ter was  given  certain  concurrent  powers  with  the  other  depart- 
ments of  the  Government  which  were  conducting  inquiries  in 
their  own  fields,  and  was  called  upon  to  assist  these  departments 
with  such  information  as  might  be  useful  to  them.  The  new 
department  divided  itself  into  branches  dealing  with  commerce 
and  production,  with  finance,  shipping,  and  common  services, 


98      .  POLITICAL  SYSTEMS  IN  TRANSITION 

with  labor  and  industrial  reorganization,  with  rural  develop- 
ment, with  the  machinery  of  government,  central  and  local, 
with  health  and  education,  and  with  housing  and  internal  trans- 
port. An  advisory  council  was  appointed  by  the  minister, 
representative  of  the  leading  interests  concerned  in  recon- 
struction, and  the  membership  of  its  several  sub-sections  was 
so  arranged  as  to  include  persons  representing  in  each  case  the 
interest  more  directly  concerned  in  the  particular  problem.  A 
number  of  reports  from  the  earlier  sub-committees  have  already 
been  published,  such  as  the  Report  on  the  Machinery  of  Gov- 
ernment, referred  to  above,  and  the  important  Whitley  Report, 
dealing  with  joint  standing  industrial  councils  as  a  means  of 
securing  a  permanent  improvement  in  the  relations  between 
employers  and  workmen.^ 

Value  to  the  United  States  of  political  experiments  in 
Great  Britain.  It  has  been  felt  necessary  to  discuss  in  some 
detail  the  changes  brought  about  in  British  political  institu- 
tions as  a  result  of  the  new  conditions  created  by  the  war,  be- 
cause these  changes  must  have  a  far-reaching  effect  upon  the 
future  government  of  Great  Britain,  and  must  in  turn  inevitably 
influence  the  course  of  development  of  democratic  institutions 
in  other  countries.  We  have  entered  upon  an  age  in  which 
new  ideas  of  political  liberty  are  passed  from  nation  to  nation 
as  formerly  from  county  to  county  of  the  same  state.  To 
Americans,  Great  Britain  is  as  it  were  a  political  laboratory 
in  which  experiments  of  the  highest  importance  are  being  car- 
ried out,  upon  the  success  of  which  the  introduction  of  similar 
methods  in  the  United  States  will  partly  depend.  As  Russia 
is  conducting  hazardous,  but  none  the  less  valuable,  tests  of 
the  fundamental  conceptions  of  democracy,  of  the  value  and 

1  Further  details  of  the  organization  and  functions  of  the  Govern- 
ment's committees  on  reconstruction  may  be  found  in  "The  Problems 
of  Reconstruction,"  edited  by  L.  Rogers,  International  Conciliation 
Bulletin  No.  135.  For  a  bibliography  of  the  subject,  see  the  "Select 
List  of  References  on  Economic  Reconstruction,"  compiled  by  the 
Library  of  Congress,  which  includes  the  reports  of  the  British  Min- 
istry of  Reconstruction. 


DEMOCRATIC  GOVERNMENTS  99 

limitations  of  the  rights  of  property,  of  legal  equality  in  con- 
tradistinction to  natural  inequality,  so  Great  Britain  is  for  us  a 
field  in  which  some  of  the  newer  problems  of  democracy  are 
being  worked  out  along  lines  which  seek  to  preserve  the  old 
traditions  of  political  liberty,  while  extending  the  scope  of 
liberty  to  include  economic  and  social  elements  without  which 
political  liberty  is  an  empty  formula.  Is  industrial  democracy 
a  feasible  solution  for  the  conflict  between  labor  and  capital? 
Can  a  better  distribution  of  national  wealth  be  obtained  with- 
out destroying  the  mainspring  of  individual  initiative  and  re- 
moving the  incentive  to  the  development  of  ability?  Is  repre- 
sentative government  to  hold  its  own  against  the  increasing 
demand  for  direct  government  of  the  people?  Can  majority 
rule  be  permitted  to  control  the  Constitution  as  well  as  the 
statutory  law  of  lesser  importance?  These  are  but  a  few  of 
the  questions  which  both  countries  are  facing,  but  which  it 
seems  probable  that  Great  Britain  will  have  to  answer  first. 
Good  government  is  not  a  matter  of  abstract,  a  priori  reasoning, 
but  of  experimental  tests ;  and  we  cannot  but  look  with  interest 
upon  the  solution  which  is  given  to  these  questions  in  a  coun- 
try whose  political  traditions  are  so  closely  similar  to  our 
own. 

Changes  in  the  Constitution  of  the  British  Empire.  Not 
only  were  British  domestic  political  institutions  profoundly 
affected  by  the  war,  but  the  relations  of  the  British  Empire 
to  its  self-governing  dominions  underwent  a  fundamental 
change  which  is  still  in  the  process  of  development.  When 
the  war  broke  out  Canada,  Newfoundland,  Australia,  New 
Zealand  and  South  Africa  possessed  an  extent  of  autonomy 
which  was,  for  the  practical  purposes  of  their  domestic  adminis- 
tration, equivalent  to  complete  independence.  Executive  au- 
thority was  exercised  nominally  by  a  Governor-General  ap- 
pointed by  the  British  Crown,  but  actually  by  a  privy  council 
or  cabinet  subject  to  the  control  of  their  respective  parliaments. 
Legislation  was  completely  within  their  control  in  all  matters 
except  the  relations  of  the  dominions  with  other  countries,  and 


loo       POLITICAL  SYSTEMS  IN  TRANSITION 

even  in  respect  to  treaties  it  was  becoming  the  custom  of  the 
British  Government  to  consult  the  wishes  of  the  dominions  be- 
fore concluding  commercial  treaties  relating  to  them.  But 
over  the  foreign  policy  of  the  British  Empire  the  dominions  had 
no  control ;  the  mother  country  spoke  for  them  in  the  councils 
of  Europe  and  decided  the  issues  of  war  and  peace.  Automati- 
cally the  declaration  of  war  by  Great  Britain  against  Germany 
made  the  dominions  parties  to  the  conflict. 

The  response  of  the  dominions  to  the  call  of  the  mother  coun- 
try was  immediate,  and  by  August,  1918,  over  a  million  men 
had  been  contributed  to  the  cause.  At  the  same  time  the 
political  leaders  of  the  dominions  made  it  clear  that  the  domin- 
ions would  never  again  suffer  themselves  to  become  involved  in 
a  war  by  the  autocratic  action  of  a  Government  in  which  they 
had  no  formal  representation.  Nor  had  the  dominions  in  the 
first  years  of  the  war  any  voice  in  the  military  policies  of  the 
British  Government.  After  the  formation  of  the  War  Cabi- 
net in  December,  1916,  an  invitation  was  sent  out  to  the  Govern- 
ments of  the  dominions  and  of  India  to  be  present  at  a  special 
war  conference  to  consider  political  and  commercial  matters 
of  joint  concern.  The  Conference  sat  side  by  side  with  the 
Imperial  War  Cabinet,  at  which  the  representatives  of  the 
dominions  met  the  Prime  Minister  and  his  colleagues  of  the 
War  Cabinet  for  the  discussion  in  secret  of  the  most  important 
aspects  of  imperial  policy.  At  the  close  of  the  Conference  a 
resolution  was  adopted,  on  April  16,  1917,  postponing  until  the 
close  of  the  war  "the  readjustment  of  the  constitutional  re- 
lations of  the  component  parts  of  the  empire,"  but  placing  it 
on  record,  as  the  view  of  the  Conference,  that  any  such  re- 
adjustment "  while  thoroughly  preserving  all  existing  powers 
of  self-government  and  complete  control  of  domestic  affairs, 
should  be  based  upon  a  full  recognition  of  the  Dominions  as 
autonomous  nations  of  an  Imperial  Commonwealth,  and  of 
India  as  an  important  portion  of  the  same." 

Federalism  versus  autonomy.  The  resolution  of  the  Im- 
perial Conference  was  generally  interpreted  as  negativing  the 


DEMOCRATIC  GOV^RNiVlfiNTS  loi 

plan  of  a  federal  empire  with  an  imperial  parlia^meiit.  aoid  an 
imperial  executive.  "  The  idea  on  which  this  resolution  is 
based,"  said  General  Smuts  in  speaking  on  the  resolution,  "  is 
rather  that  the  empire  will  develop  on  the  lines  upon  which 
it  has  developed  hitherto:  that  there  will  be  more  freedom 
and  equality  in  all  its  constituent  parts;  that  they  will  con- 
tinue to  legislate  for  themselves  and  continue  to  govern  them- 
selves; that  whatever  executive  action  has  to  be  taken,  even 
in  common  concerns,  would  have  to  be  determined,  as  the  last 
paragraph  says,  *  by  the  several  governments '  of  the  em- 
pire." And  again,  on  another  occasion,  "  we  are  a  system  of 
nations.  We  are  not  a  state,  but  a  community  of  states  and 
nations."  On  the  other  hand  there  is  a  group  of  federalists 
who  urge  that  the  only  stable  union  that  can  be  established  be- 
tween the,  dominions  and  tlie  mother  country  is  one  growing 
out  of  a  central  government  to  which  the  members  of  the 
federation  would  bear  the  clear  and  definite  relations  which 
can  be  laid  down  in  a  formal  written  Constitution.  It  can- 
not be  hoped,  they  argue,  that  the  informal  conferences  and 
consultations,  such  as  those  of  1917,  will  be  adequate  to  bind 
together  the  distant  parts  of  the  empire  once  the  old  centrifugal 
forces  are  released  by  the  termination  of  the  war.  An  im- 
perial cabinet  for  the  decision  of  questions  of  foreign  policy  and 
imperial  defense  would  be  inevitably  driven  to  consider 
economic  and  political  issues  affecting  foreign  policy,  and  the 
demand  for  an  imperial  parliament  would  be  the  logical  result. 
One  federalist  has  sketched  an  elaborate  plan  in  which  provi- 
sion is  made  for  an  imperial  legislature  consisting  of  a  senate 
representing  the  states  of  the  union  and  a  house  of  represen- 
tatives composed  of  representatives  of  the  peoples  of  the  union.^ 
This  imperial  parliament  would  have  no  control  over  exclusively 
British  affairs,  so  that  it  would  be  necessary  to  create  a  separate 
local  parliament  for  Great  Britain  similar  to  those  now  pos- 
sessed by  the  dominions.  Mr.  Lionel  Curtis,  a  pioneer  in  the 
movement,  has  gone  so  far  as  to  say  that  the  issue  is  "  whether 

1  Basil  Worsfold,  "The  Empire  on  the  Anvil," 


102       POLITICAL  SYSTEMS  IN  TRANSITION 

the  'Dominions  are  to  become  independent  republics,  or  whether 
this  world-wide  Commonwealth  is  destined  to  stand  more 
closely  united  as  the  noblest  of  all  political  achievements."  ^ 

The  Imperial  Commonwealth  and  a  League  of  Nations. 
The  reorganization  of  the  British  Empire  is  a  problem  the 
solution  of  which  Americans  must  watch  with  the  deepest  in- 
terest. The  analogies  which  the  situation  bears  to  that  con- 
fronted by  the  Constitutional  Convention  in  assembly  at  Phila- 
delphia in  1787  are  perhaps  not  sufficiently  close  to  make  a 
comparison  instructive,  for  the  American  union  was  between 
the  colony-states  themselves,  while  the  Imperial  Common- 
wealth must  "include  within  it  a  dominating  mother  country 
which  has  hitherto  been  in  supreme  control.  Moreover  the 
dominions  and  the  mother  country  have  separate  political  and 
commercial  interests  far  more  divergent  than  those  of  Mas- 
sachusetts and  Virginia  or  of  New  York  and  Rhode  Island  in 
1787.  Of  greater  present  importance  is  the  analogy  between 
the  federation  of  the  British  Empire  and  the  proposed  League 
of  Nations.  In  an  address  at  the  Peace  Conference,  which 
has  been  widely  quoted,  General  Smuts,  as  delegate  from 
South  Africa,  spoke  as  follows :  "  People  talk  about  a  league 
of  nations  and  international  government,  but  the  only  success- 
ful experiment  in  international  government  that  has  ever  been 
made  is  the  British  Empire,  founded  on  principles  which  ap- 
peal to  the  highest  political  ideals  of  mankind.  .  .  .  Our  hope 
is  that  the  basis  may  be  so  laid  for  the  future  that  it  may  be- 
come an  instrument  for  good,  not  only  in  the  empire,  but  in 
the  whole  world."  And  again,  in  a  draft  "  plan  for  a  League 
of  Nations  "  the  same  eminent  statesman  carried  the  compari- 
son into  further  details,  showing  that  the  ultimate  authority 

1  **  The  Problem  of  the  Commonwealth,"  p.  vii.  The  recognition  by 
the  Covenant  of  the  League  of  Nations  of  a  right  on  the  part  of  Can- 
ada, Australia,  New  Zealand,  and  South  Africa,  to  be  represented  in  the 
Assembly  of  the  League,  apart  from  the  objection  that  it  overweights 
the  vote  of  Great  Britain,  is  in  keeping  with  the  actual  position  held 
by  the  dominions  in  international  relations.  The  representation  of 
India  is  less  justifiable. 


DEMOCRATIC  GOVERNMENTS  103 

of  common  action  in  both  instances  was  a  conference  of  the 
principle  constituent  states,  at  which  a  common  poHcy  was  to 
be  laid  down,  to  be  carried  out  by  the  individual  governments 
of  the  states  acting  as  the  executive  branch  of  the  League. 
Further,  the  administration  of  the  crown  colonies  and  pro- 
tectorates of  the  British  Empire  bore,  he  said,  a  close  resem- 
blance to  the  proposed  guardianship  of  the  League  over  the 
colonies  and  undeveloped  territories  formerly  belonging  to 
Germany.  It  is  clear  that  for  many  years  to  come  the  prob- 
lem of  federalism  will  be  one  of  the  most  difficult  problems 
of  statesmanship,  whether  within  the  boundaries  of  the  sepa- 
rate nations,  such  as  Germany,  Russia,  and  the  British  Empire, 
or  as  extending  to  the  nations  of  the  world  at  large  in  the 
endeavor  to  create  an  international  union  which  shall  consti- 
tute a  bond  of  peaceful  intercourse  without  infringing  upon 
the  local  autonomy  of  its  members.^ 

War  Cabinets  in  France.  The  experience  of  France  in 
adapting  its  political  institutions  to  the  demands  of  war  bears 
less  directly  than  that  of  Great  Britain  upon  the  problems  con- 
fronting the  United  States,  but  it  is  of  no  less  intrinsic  interest 
to  the  student  of  government.  The  outstanding  feature  was 
the  example  set  by  France  of  the  reality  of  its  parliamentary 
government  in  time  of  war,  and  the  possibility  of  securing  an 
efficient  fighting  machine  without  denying  the  right  of  public 
opinion  in  and  out  of  the  chambers  to  criticise  the  Government 
and  to  overthrow  cabinets  as  in  times  of  peace.  Upon  the 
outbreak  of  the  war  the  Viviani  Cabinet  decided  to  resign, 
not  because  of  any  direct  opposition,  but  in  order  to  permit  the 
formation  of  a  new  cabinet  comprising  the  best  men  of  all  the 
several  Republican  groups.     The  new  Cabinet,  of  which  Viviani 

^  It  would  be  interesting,  but  outside  of  the  scope  of  the  present  vol- 
ume, to  make  further  comparisons  with  the  proposed  solution  of  the 
Irish  question,  by  conferring  upon  Ireland,  Scotland,  Wales,  and  Eng- 
land proper  the  status  of  local  autonomy  possessed  by  the  dominions. 
At  the  moment  of  present  writing  the  situation  calls  for  separate  treat- 
ment of  Irish  self-government. 


I04      POLITICAL  SYSTEMS  IN  TRANSITION 

remained  the  head  without  portfoHo,  gave  representation  to 
the  SociaHst  groups  in  the  person  of  Jules  Guesde.  In  Oc- 
tober, 1915,  the  Viviani  Cabinet  resigned  under  criticism, 
chiefly  from  the  pen  of  Clemenceau,  of  its  poHcy  in  the  Near 
East  in  not  averting  the  entrance  of  Bulgaria  into  the  war  on 
the  side  of  Germany.  The  succeeding  Cabinet  was  a  coali- 
tion one,  and  was  equally  a  departure  from  fixed  traditions  as 
was  the  Coalition  Cabinet  in  Great  Britain.  It  was  formed 
•under  the  premiership  of  Briand,  and  its  larger  number  of 
twenty-four  members  permitted  the  inclusion  of  leaders  of  all 
the  political  groups,  not  excepting  even  the  royalist  and  clerical 
party.  Again  Clemenceau  attacked  from  the  columns  of 
"  L'Homme  Enchaine,"  this  time  on  the  ground  among  others 
that  the  new  Cabinet  was  too  large  and  could  not  reach  deci- 
sions quickly  enough.  In  December,  1916,  the  Briand  Cabinet 
was  reorganized  so  as  to  permit  the  formation  of  a  small  "  War 
Council "  of  five  members,  similar  to  that  formed  in  Great 
Britain  under  Lloyd  George.  In  spite  of  this  reorganization 
criticism  continued,  and  in  March,  1917,  the  Briand  Cabinet  re- 
signed and  two  Cabinets  of  brief  tenure  followed.  That  headed 
by  Ribot  was  discredited  by  its  failure  to  take  action  against 
German  propagandists,  and  that  headed  by  Painleve  fell  after 
being  in  ofiice  but  two  months,  having  failed  to  give  representa- 
tion to  the  Socialist  groups.  In  November,  191 7,  Clemenceau, 
who  had  been  responsible  for  the  fall  of  so  many  Cabinets,  was 
called  upon  to  form  a  new  Cabinet  of  his  own,  and  in  spite  of 
the  opposition  of  the  Unified  Socialists  he  succeeded  in  holding 
the  confidence  of  a  majority  of  the  Deputies.  His  administra- 
tion was  marked  by  redoubled  efforts  in  the  prosecution  of  the 
war  and  by  strong  measures  against  the  "  defeatist "  groups, 
who  were  suspected  of  working  in  the  interest  of  Germany. 
The  Clemenceau  Cabinet  remained  in  power  until  the  close  of 
the  war,  and  after  carrying  through  the  negotiations  of  the 
peace  treaty  won  a  substantial  victory  in  the  elections  of  No- 
vember, 1919.^ 

^A    summary   of   parliamentary   changes    during   the   war   may    be 
found  in  L.  Duguit,  "  Manuel  de  Droit  Constitutionnel,"  3d  ed.,  p.  201. 


DEMOCRATIC  GOVERNMENTS  105 

Relation  of  cabinet  changes  to  the  national  morale.  To 
the  onlooker  from  abroad  the  rise  and  fall  of  French  Cabinets 
might  appear  as  a  sign  of  weakness  and  offer  good  reason  for 
doubting  the  efficiency  of  democratic  institutions  in  the  pres- 
ence of  a  great  crisis.  But  it  may  well  be  questioned  whether 
the  responsiveness  of  a  cabinet  form  of  government  to  the  de- 
mands of  public  opinion  did  not  furnish  the  French  people 
with  an  outlet  for  the  tense  feeHngs  and  strong  convictions 
which  the  impending  danger  of  defeat  aroused,  and  to  that 
extent  steadied  the  nerves  of  the  nation  and  made  it  feel  that 
each  change  in  the  Government  was  but  the  enlistment  in  the 
service  of  the  Government  of  those  best  fitted  to  meet  the  par- 
ticular emergency.  Undoubtedly  the  large  number  of  French 
political  parties  proved  at  times  an  embarrassment,  since  it  be- 
came necessary  to  take  into  account  party  affiliation  as  well  as 
executive  ability  in  making  up  the  membership  of  the  several 
Coalition  Cabinets.  That  was  the  price  which  France  paid  for 
the  strong  note  of  individuahsm  in  her  political  consciousness. 
But  admitting  the  existence  of  numerous  groups  of  divergent 
opinion  in  the  state,  it  was  far  better  that  they  should  find  rep- 
resentation in  the  administration  than  that  for  the  sake  of  a 
greater  unity  of  control  a  large  part  of  the  people  should  have 
been  lacking  in  confidence  in  the  purposes  of  the  Government. 
In  a  war  of  successive  victories  the  efficiency  of  a  single  com- 
mand might  well  have  justified  itself,  as  it  did  in  Germany, 
against  an  unrepresented  minority  of  the  people.  In  a  war  of 
defeats  and  deadlock  and  of  imminent  danger  continued 
through  many  months,  it  is  doubtful  whether  an  executive  de- 
partment not  closely  in  touch  with  public  opinion  in  all  its 
phases  could  have  held  the  nation  together.  The  "  union 
sacree "  in  which  President  Poincare,  in  his  address  to  the 
chambers  on  August  4,  1914,  found  all  parties  of  the  nation 
combined  was  only  maintained  through  the  long  ordeal  by  cast- 
ing upon  each  party  a  share  of  the  national  burden.  As  the 
event  proved  the  responsibility  was  not  misplaced. 

Parliamentary   Government   during  the  war.    A   second 


io6      POLITICAL  SYSTEMS  IN  TRANSITION 

characteristic  of  French  democracy  in  the  presence  of  the 
great  crisis  was  the  part  played  by  the  legislative  body  in  the 
conduct  of  the  war.  While  the  British  Parliament  remained  a 
more  or  less  idle  spectator  and  critic  of  the  work  of  the  Cabi- 
net, the  French  Chamber  of  Deputies  undertook  to  exercise 
its  normal  legislative  functions  and  to  take  an  active  part  in 
directing  the  administration.  For  a  brief  period  after  the 
outbreak  of  the  war  parliamentary  government  was  suspended, 
but  by  January,  191 5,  it  was  revived,  and  from  that  date  on 
the  two  houses  became  practically  permanent,  the  Government 
having  announced  that  it  would  not  exercise  its  constitutional 
power  of  adjourning  them.  The  great  commissions  dealing 
with  the  army  and  with  foreign  affairs  were  thus  able  to  hold 
continuous  sessions,  in  spite  of  the  traditional  rule  of  parlia- 
mentary procedure  and  in  spite  of  the  special  provision  of  the 
Constitution.  A  resolution  was  adopted  by  the  Chamber  in 
1916  in  which  it  declared  itself  "  resolved  to  fulfill  its  duty  of 
giving  a  more  and  more  constant  and  vigorous  impulse  to  the 
national  defense  by  strict  cooperation  with  the  Government." 
Secret  sessions  were  held  in  which  all  of  the  military,  diplomatic, 
and  economic  questions  raised  by  the  war  were  examined,  and 
votes  of  confidence  were  passed  accordingly.  While  abstain- 
ing from  interference  in  military  affairs,  the  Chamber  was  de- 
termined to  see  that  the  measures  taken  to  furnish  the  neces- 
sary supplies  to  the  army  should  be  equal  to  the  emergency. 
In  consequence  it  undertook  to  give  orders  to  the  executive 
department  and  to  exercise  a  direct  and  effective  control  over 
all  the  services  of  the  Government.  It  is  asserted  by  a  num- 
ber of  foreign  observers  that  the  commissions  of  the  Cham- 
ber rendered  valuable  service  to  the  Government,  and  showed 
the  possibility  of  maintaining  intimate  and  effective  relations 
between  the  legislature  and  the  executive.^     On  the  other  hand, 

^In  the  following  chapter  it  will  be  possible  to  make  comparisons 
with  the  absence  of  cooperation  between  Congress  and  the  Executive 
of  the  United  States.  Congress  could  criticise,  but  it  could  not  make 
its  criticism  effective  by  bringing  pressure  to  bear  upon  the  Executive. 


DEMOCRATIC  GOVERNMENTS  107 

in  France  as  in  Great  Britain,  administrative  reorganization 
was  considerably  delayed,  and  it  was  not  until  December,  191 6, 
that  a  unified  control  was  established  over  the  production  and 
distribution  of  food,  fuel,  munitions,  and  military  supplies. 

At  the  same  time  the  committees  of  Congress  were  restricted  to  the 
passage  of  laws  conferring  general  power  upon  the  President  and 
necessarily  leaving  him  a  wide  discretion  in  the  use  of  administrative 
agencies. 


PART  III 

CHANGES  IN  THE  POLITICAL  INSTITUTIONS 
OF  THE  UNITED  STATES 


CHAPTER  V 

THE   WAR   AND   THE    CONSTITUTION 

Constitutional    unpreparedness    of    the    United    States. 

"  Constitutional  unpreparedness  "  is  perhaps  the  best  character- 
ization of  the  situation  in  which  the  United  States  found  itself 
upon  its  entrance  into  the  war  in  April,  191 7.  It  was  not 
merely  that  the  country  was  unprepared  in  respect  to  the  ac- 
cumulation of  the  material  resources  which  were  essential  to 
the  conduct  of  a  great  war;  for  this  form  of  unpreparedness 
was  not  imposed  upon  the  United  States  by  its  Constitution, 
but  by  its  inability  to  realize  the  inevitableness  of  the  conflict 
into  which  it  was  driven.  No  clause  of  the  Constitution  pre- 
vents Congress  from  taking  such  measures  as  in  its  judgment 
are  necessary  to  protect  the  nation  against  enemies  from  with- 
out ;  and  had  it  been  the  conviction  of  Congress,  following  the 
sinking  of  the  Lusitania,  that  the  United  States  must  ultimately 
be  ranged  on  the  side  of  the  Allies,  not  merely  to  protect 
American  rights  but  to  champion  the  cause  of  international 
justice,  the  outbreak  of  the  war  might  have  found  a  million 
trained  men  with  equipment  at  hand  and  ships  ready  to  convey 
them  to  the  fighting  line.  But  even  such  a  state  of  prepared- 
ness, while  it  might  have  obviated  the  confusion  attendant 
upon  the  attempt  to  do  quickly  what  should  have  been  done 
deliberately,  could  not  have  removed  the  constitutional  diffi- 
culties involved  in  the  actual  entrance  into  a  state  of  war. 

These  constitutional  difficulties  were  inherent  in  the  polit- 
ical institutions  of  the  country,  and  were  the  result:  first,  of 
the  existence  of  a  written  constitution  defining  the  powers  of 
the  Government  and  imposing  limitations  upon  it;  secondly, 
of  the  distribution  of  the  powers  of  the  central  government 
between  three  distinct  and  separate  agencies;  and  thirdly,  of 

III 


112      POLITICAL  SYSTEMS  IN  TRANSITION 

the  division  of  the  powers  of  government  between  the  central 
government  and  the  member  states  of  the  Union.  The  mean- 
ing and  purpose  of  these  three  fundamental  features  of  the 
Government  of  the  United  States  has  already  been  pointed  out 
in  the  sketch  of  the  Constitutions  of  the  great  nations  on  the 
eve  of  the  war,  and  it  is  only  necessary  here  to  call  attention 
to  the  fact  that  in  the  description  of  the  steps  taken  by  the 
United  States  to  meet  the  demands  of  the  war  we  shall  find 
ourselves  constantly  in  the  presence  of  constitutional  obstruc- 
tions which  at  one  turn  or  another  brought  the  forces  of  the 
Government  to  a  temporary  halt.  How  these  obstructions  were 
overcome  without  doing  open  violence  to  the  Constitution  we 
shall  see  later ;  but  it  cannot  be  denied  that  they  were  a  serious 
handicap  in  the  conduct  of  the  war.  Time  was  lost  all  along 
the  line;  the  legislative  and  executive  departments  worked  at 
times  at  cross  purposes;  duplication  of  functions  was  fre- 
quent; and  lack  of  coordination  was  a  continuous  feature  of 
many  of  the  boards  and  bureaus  performing  similar  duties. 
So  much  was  accomplished  in  the  end  that  we  are  tempted  to 
dwell  rather  upon  the  positive  results  of  American  participa- 
tion in  the  war  than  upon  the  delays  and  shortcomings  and 
extravagances  that  accompanied  it.  It  is  only  when  we  con- 
trast the  balance  sheet  of  America's  effort  with  that  of  auto- 
cratic Germany,  or  even  with  that  of  Great  Britain  with  its 
cabinet  form  of  government,  that  we  realize  the  cost  of  a 
democracy  like  ours  and  the  disadvantage  in  which  it  is  placed 
in  time  of  war. 

The  Constitution  not  solely  responsible  for  the  shortcom- 
ings of  the  Government.  It  must  be  confessed  that  not  all 
the  shortcomings  with  which  the  Government  of  the  United 
States  stands  charged  were  due,  as  we  shall  see  later  in  detail, 
to  the  actual  impediments  raised  by  the  Constitution  of  the 
country.  Cooperation  was  frequently  possible  between  the  de- 
partments of  the  central  government  and  between  the  central 
government  and  the  states,  but  failed  to  exist  because  of  jeal- 
ousies of  one  branch  of  the  Government  towards  another,  or 


THE  WAR  AND  THE  CONSTITUTION        113 

because  of  the  inefficiency  of  the  local  officials  upon  whom 
pressure  could  not  be  brought  by  the  central  government.  In 
many  instances  the  interference  of  Congress  with  the  conduct 
of  the  administration  was  merely  the  result  of  a  distrust  of 
the  particular  officials  in  charge,  and  of  an  unwillingness  to 
allow  them  a  free  hand  which  they  might  well  have  had  with- 
out doing  violence  to  the  Constitution.  As  Professor  Ford  has 
said,  **  the  administration  may  be  criticised  for  incompetency, 
when  the  true  defect  was  its  impotence;  and  nowhere  is  the 
attitude  of  criticism  stronger  than  in  Congress,  which  is  the 
creator  and  maintainer  of  that  impotence."  ^  The  difference 
in  this  respect  between  the  position  of  the  British  Parliament 
and  that  of  the  United  States  Congress  was  that  the  former 
body  criticised  with  a  sense  of  responsibility  resulting  from 
the  fact  that  the  administration  was  its  own  delegated  body 
and  could  be  removed  from  office  at  any  time,  whereas  Con- 
gress, having  no  direct  control  over  the  administration,  criti- 
cised more  recklessly  and  was  reluctant  to  surrender  whatever 
indirect  control  it  could  exercise  through  the  power  to  define 
in  detail  the  way  in  which  the  administrative  departments 
should  perform  their  duties.  Wherever  criticism  is  divorced 
from  responsibility  it  tends  to  become  destructive  rather  than 
constructive. 

Difficulties  due  to  traditions  of  individualism.  Apart 
from  weaknesses  in  the  organization  of  the  Government,  there 
was  a  further  handicap  under  which  the  Government  of  the 
United  States  labored  when  faced  with  the  problems  of  a  great 
war.  The  people  .of  the  United  States  had  never  been  accus- 
tomed to  any  large  measure  of  governmental  interference  either 
in  their  business  affairs  or  in  their  private  lives ;  in  consequence 
the  Government  lacked  the  organization  needed  to  bring  all  the 
forces  of  the  country  to  bear  upon  the  single  object  of  win- 
ning the  war.  On  the  other  hand  the  citizen  body,  in  spite  of 
their  good  will,  were  unfamiliar  with  the  methods  of  reglmen- 

1 "  The  War  and  the  Constitution,"  Atlantic  Monthly,  October,  1917, 
p.  487. 


114      POLITICAL  SYSTEMS  IN  TRANSITION 

tation  and  discipline  necessary  to  the  most  effective  team  work. 
Both  defects  were  in  due  time  made  good,  but  as  in  the  case  of 
Great  Britain,  whose  citizen  body  had  been  as  httle  trained  in 
that  way  as  our  own,  much  valuable  time  was  lost  in  the  pro- 
cess of  adaptation.  From  one  point  of  view,  however,  the 
unpreparedness  of  the  American  people  in  respect  to  methods 
and  agencies  of  cooperation  with  the  Government  reflects  the 
highest  credit  upon  them.  For  their  ready  response  to  the  de- 
mands made  upon  them  and  their  ability  to  initiate  ways  and 
means,  chiefly  of  a  voluntary  character,  were  made  all  the  more 
manifest  by  their  previous  habits  of  economic  and  social  indi- 
vidualism. 

Difficulties  due  to  fundamental  personal  rights.  The  tra- 
ditions of  the  American  people  presented  an  even  greater  diffi- 
culty, for  they  involved  certain  fundamental  rights  which  many 
persons  were  reluctant  to  abandon  even  in  the  presence  of  a 
great  emergency.  Freedom  of  speech  and  of  the  press,  the 
right  of  assembly,  the  right  to  be  free  from  searches  and  seiz- 
ures without  warrant,  the  right  to  obtain  a  writ  of  habeas 
corpus  and  to  be  tried  by  a  jury  in  a  civil  court  with  due 
process  of  law,  are  all  rights  which  must  at  times  obstruct  a 
government  at  war,  owing  to  the  presence  of  agents  of  the 
enemy  who  would  make  use  of  them  as  a  cover  for  their 
hostile  plans.  Yet  the  importance  of  those  rights,  as  being 
of  the  very  essence  of  free  government,  led  many  to  hold  that 
it  were  better  to  risk  the  danger  of  their  abuse  by  foes  within 
the  country  than  to  suffer  them  to  be  set  aside  and  thus  have 
a  precedent  established  which  might  operate  toJessen  the  sacred- 
ness  of  those  rights  in  the  future.  In  Great  Britain,  as  we  have 
seen,  the  traditions  of  personal  freedom  were  as  strong  as  in 
the  United  States,  but  Parliament,  being  the  maker  of  the 
Constitution  as  well  as  of  the  laws  of  the  land,  was  able  to 
set  them  aside  by  its  own  act,  and  its  judginent  was  final  in  the 
case;  whereas  in  the  United  States,  even  had  the  emergency 
been  the  same,  certain  restrictions  placed  by  Great  Britain 
upon   fundamental  rights,  such  as  the  extension  of  military 


THE  WAR  AND  THE  CONSTITUTION        115 

law  to  the  civilian  population,  would  have  run  counter  to  the 
explicit  guarantees  of  the  Constitution.  Other  restrictions 
placed  by  Parliament  were  found  equally  compatible  with  a 
liberal   interpretation  of  our  own   Constitution. 

The  Constitution  in  time  of  war.  Solus  populi  suprema 
lex.  In  the  presence  of  a  great  national  crisis,  when  the  wel- 
fare of  the  State  is  at  stake,  is  the  Constitution  to  remain  the 
supreme  law  of  the  land?  And  if  still  the  supreme  law,  does 
this  connote  that  its  provisions  must  necessarily  cover  by  im- 
plication every  power  which  the  Government  at  war  will  be 
called  upon  to  exercise,  even  where  the  letter  of  the  law  may 
seem  to  fall  short  of  conferring  the  actual  power  required? 
Congress  is  a  body  possessing  only  such  powers  as  are  enumer- 
ated in  the  Constitution;  all  other  powers  are  reserved  to  the 
states  which  compose  the  nation.  But  Congress  is  at  the  same 
time  the  body  which  declares  war  and  is  under  the  Constitu- 
tion responsible,  together  with  the  President,  for  the  successful 
prosecution  of  it.  May  it  therefore  assume  such  powers  as 
belong  to  the  Government  of  a  unitary  sovereign  nation,  on 
the  theory  that  the  reserved  rights  of  the  member  states  would 
otherwise  be  in  danger  of  extinction?  Moreover,  there  are 
restrictions  imposed  upon  Congress  by  the  Amendments  guar- 
anteeing the  inviolability  of  the  fundamental  rights  of  citizen- 
ship. Do  these  guarantees  continue  to  hold  in  time  of  war, 
or  may  they  be  set  aside  where  the  emergency  demands  it? 
Must  freedom  of  speech  and  of  the  press,  the  right  of  assembly, 
and  the  immunity  from  searches  and  seizures  without  warrant, 
yield  to  the  urgent  need  of  national  unity  in  time  of  war? 
Or  on  the  other  hand  are  there  limits  beyond  which  Congress 
cannot  go  in  restricting  individual  liberty,  so  that  legislation 
passed  under  guise  of  the  war  powers  may  be  contested  as 
not  being  properly  within  them?  If  restrictions  upon  personal 
liberty  are  permissible,  may  the  judgment  of  Congress  as  to 
the  needs  of  the  situation  be  questioned  by  the  judicial  branch 
of  the  Government?  These  questions  may  seem  to  have  an 
academic  character,  but  it  must  be  remembered  on  the  one 


ii6      POLITICAL  SYSTEMS  IN  TRANSITION 

hand  that  the  Government  of  a  federal  state  is  only  possible 
by  a  jealous  maintenance  of  local  self-government  against  the 
inevitable  encroachments  of  federal  control,  and  on  the  other 
hand  that  insistence  upon  national  unity  in  time  of  war  by 
various  forms  of  coercion  tends  to  perpetuate  itself  after  the 
emergency  has  passed,  so  that  in  both  cases  any  concessions  of 
unHmited  power  to  the  Government  in  time  of  war  must  act 
as  dangerous  precedents  for  a  continued  exercise  of  such 
powers  in  time  of  peace. 

Congress  as  the  legislature  of  a  sovereign  state.  It  must 
be  conceded  that  there  is  some  warrant  for  holding  that  the 
power  of  Congress  in  time  of  war  rises  superior  to  any  con- 
stitutional limitations.  In  a  case  involving  the  right  of  Con- 
gress to  forbid  the  entrance  of  Chinese  into  the  United  States, 
the  Supreme  Court,  after  arguing  that  the  right  to  exclude 
or  expel  aliens  was  an  inherent  and  inalienable  right  of  every 
sovereign  and  independent  nation,  spoke  as  follows :  "  The 
United  States  are  a  sovereign  and  independent  nation,  and  are 
vested  by  the  Constitution  with  the  entire  control  of  inter- 
national relations,  and  with  all  the  powers  of  government  neces- 
sary to  maintain  that  control  and  to  make  it  effective."  ^  But 
if  this  is  true  with  respect  to  restrictions  upon  immigration 
how  much  more  true  with  respect  to  that  most  vital  right  of 
every  sovereign  state,  the  right  to  defend  itself  with  all  its 
forces  against  an  enemy  state  ?  An  even  more  pertinent  argu- 
ment is  to  be   found  in  the  Second  Legal  Tender  case,  in 

1  Fong  Yue  Ting  v.  United  States,  149  U.  S.,  698.  In  his  comment 
upon  this  case  Professor  Willoughby  makes  the  following  remarks: 
"  In  short,  it  may  be  stated  as  an  established  prmciple  of  our  consti- 
tutional law  that  the  supreme  purpose  of  our  Constitution  is  the  estab- 
lishment and  maintenance  of  a  State  which  shall  be  nationally  and 
internationally  a  sovereign  body,  and,  therefore,  that  all  the  limitations 
of  the  Constitution,  express  and  implied,  whether  relating  to  the  re- 
served rights  of  the  States  or  to  the  liberties  of  the  individual,  are  to 
be  construed  as  subservient  to  this  one  great  fact."  "  The  Constitu- 
tional Law  of  the  United  States,"  Vol.  I,  p.  65.  This  nationalistic  in- 
terpretation of  the  Constitution  is,  however,  questioned  by  other  writers. 


THE  WAR  AND  THE  CONSTITUTION        117 

which  the  Supreme  Court  passed  upon  the  right  of  Congress 
to  make  treasury  notes  legal  tender  during  the  financial  crisis 
of  the  Civil  War.  In  1862,  when  the  treasury  was  low  and 
other  forms  of  raising  money  were  inadequate  to  meet  the 
demands  made  upon  the  Government,  Congress  authorized  the 
issue  of  half  a  billion  dollars  of  paper  money,  based  only 
upon  the  credit  of  the  Government  and  made  valid  for  the 
payment  both  of  taxes  and  of  private  debts  contracted  before 
the  passage  of  the  act.  The  act  was  at  first  declared  un- 
constitutional, but  was  upheld  in  a  later  case  and  justified 
as  the  legitimate  exercise  of  war  powers.^  In  a  concurring 
opinion  rendered  by  Justice  Bradley  the  argument  was  made 
that  "the  United  States  is  not  only  a  government,  but  it  is 
a  national  government,  and  the  only  government  in  this  coun- 
try that  has  the  character  of  nationality.  It  is  invested  with 
power  over  all  the  foreign  relations  of  the  country,  war, 
peace,  and  negotiations  and  intercourse  with  other  nations ; 
all  which  are  forbidden  to  the  state  governments.  .  .  .  Such 
being  the  character  of  the  general  government,  it  seems  to  be 
a  self-evident  proposition  that  it  is  invested  with  all  those 
inherent  and  implied  powers  which,  at  the  time  of  adopting 
the  Constitution,  were  generally  considered  to  belong  to  every 
government  as  such,  and  as  being  essential  to  the  exercise  of 
its  functions."  The  Justice  himself  had  some  doubt  of  the 
validity  of  his  reasoning,  for  he  asserted  that  "  if  this  propo- 
sition be  not  true  "  Congress  had  express  authority  to  make 
such  laws  under  the  clause  of  the  Constitution  giving  it  the 
power  "  to  make  all  laws  necessary  and  proper  "  for  carrying 
into  effect  the  powers  specifically  enumerated.  The  danger 
involved  in  the  argument  of  Justice  Bradley  is  that  to  concede 
to  Congress  the  powers  belonging  to  the  legislature  of  a  sover- 
eign state  is  to  break  down  the  traditional  doctrine,  sanctioned 
by  a  long  line  of  judicial  decisions,  that  the  United  States 
is  in  all  its  operations  a  government  of  enumerated  powers, 

^Knox  V.  Lee,  12  Wallace's  Reports,  457. 


ii8      POLITICAL  SYSTEMS  IN  TRANSITION 

and  thus  to  open  the  way  for  a  centralization  of  authority  in 
Washington  which  would  make  serious  inroads  upon  the  consti- 
tutional rights  of  the  states  of  the  Union.^ 

War  powers  without  restrictions.  A  more  recent  asser- 
tion of  the  unlimited  powers  of  the  Government  in  time  of 
war  comes  from  the  pen  of  a  strong  nationalist.  Senator 
Sutherland  draws  a  distinction  between  the  canons  of  consti- 
tutional interpretation  to  be  applied  in  times  of  peace  and  the 
"  assumptions  "  and  "  constructions  "  necessary  in  time  of  war; 
and  he  upholds  the  position  taken  by  Justice  Strong  in  the 
Second  Legal  Tender  case,  where,  as  we  have  seen,  a  very 
wide  interpretation  was  put  upon  the  powers  of  Congress,  quot- 
ing with  approval  the  statement  of  the  court  that"  it  is  not 
to  be  denied  that  acts  may  be  adapted  to  the  exercise  of  lawful 
power,  and  appropriate  to  it,  in  seasons  of  exigency,  which 
would  be  inappropriate  at  other  times."  Justice  Strong  was 
careful,  however,  to  base  his  justification  of  the  Legal  Tender 
Acts  upon  the  urgent  necessities  of  the  "  time  "  and  the  "  cir- 
cumstances "  under  which  "  Congress  was  called  upon  to  de- 
vise means  for  maintaining  the  army  and  navy,  for  securing 
the  large  supplies  of  money  needed  and,  indeed,  for  the  preser- 
vation of  the  Government  created  by  the  Constitution."  Sen- 
ator Sutherland  seems  to  be  ready  to  dispense  even  with  the 
necessity  of  making  inferences  from  powers  actually  granted, 
and  believes  that  the  power  of  the  general  government  in  time 
of  war  to  sharpen  the  sword  and  strengthen  the  purse  "  exists 
without  any  restrictions  whatsoever  "  save  such  as  are  imposed 
by  other  express  prohibitions  of  the  Constitution.  Even  these 
restrictions  may  be  suspended  when  "  they  conflict  with  the 
paramount  powers  of  war."  He  frankly  faces  "  the  alterna> 
tive  of  violating  the  Constitution,  or  sacrificing  the  Republic," 
and  repeats  and  applies  to  the  existing  situation  (in  19 17)  the 
words  of  Lincoln  in  1864:     "I  felt  that  measures,  otherwise 

1  This  centralization  of  authority  in  what  may  be  regarded  as  national 
matters  might  indeed  have  its  advantages ;  but  the  issue  is  one  of  such 
importance  that  it  should  be  squarely  faced. 


THE  WAR  AND  THE  CONSTITUTION        119 

unconstitutional,  might  become  lawful  by  becoming  indispen- 
sable to  the  preservation  of  the  Constitution  through  the  preser- 
vation of  the  Union."  * 

Inferences  from  the  pov/er  "  to  raise  and  support  armies.'* 
It  may  seem  an  over-subtle  distinction  to  make,  but  it  is 
sounder  constitutional  law  to  justify  the  broad  powers  assumed 
by  Congress  during  the  war  by  inference  from  the  war  clauses 
of  the  Constitution.  After  giving  Congress  the  power  to  de- 
clare war,  the  Constitution  in  the  following  clause  gives  Con- 
gress the  power  "to  raise  and  support  armies,"  and  in  the 
next  clause  the  power  "  to  provide  and  maintain  a  navy," 
Other  secondary  powers  are  granted  relative  to  the  organiza- 
tion and  regulation  of  the  forces  thus  raised.  To  these  ex- 
press powers  must  be  added  the  implied  powers  contained  in 
a  subsequent  clause  of  the  Constitution  granting  power  to 
Congress  "  to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  effect  the  foregoing  powers."  Are 
not  these  terms  sufficiently  inclusive  to  embrace  by  inference 
every  power  which  in  the  judgment  of  Congress  might  con- 
tribute to  the  strengthening  of  the  fighting  arm  of  the  nation, 
without  going  to  the  extent  of  conferring  upon  Congress  author- 
ity which  might  encroach,  as  by  sovereign  right,  upon  the  self- 
governing  powers  of  the  States  or  the  liberties  of  the  individ- 
ual citizen?  The  actual  grant  of  power  to  Congress  is  com- 
prehensive and  unrestricted,  and  it  is  a  striking  feature  of  a 
Constitution,  which  in  other  matters  imposes  so  many  limita- 
tions upon  the  governing  bodies,  that  in  respect  to  the  conduct 
of  war  it  leaves  them  such  a  free  hand.  If  its  f ramers  deliber- 
ately hedged  in  the  departments  of  the  Government  with  re- 
strictions in  the  conduct  of  domestic  affairs  in  time  of  peace, 
they  at  least  showed  no  intention  of  placing  any  direct  impedi- 
ments upon  the  Government  when  confronted  with  enemies 
from  without.  As  Hamilton  observed  at  the  time,  the  powers 
essential  to  the  common  defense  "  ought  to  exist  without  limi- 
tation, because  it  is  impossible  to  foresee  or  define  the  extent 

1 "  Constitutional  Power  and  World  Affairs,"  pp.  92-99. 


120      POLITICAL  SYSTEMS  IN  TRANSITION 

and  variety  of  national  exigencies,  or  the  correspondent  ex- 
tent and  variety  of  the  means  which  may  be  necessary  to 
satisfy  them."  ^  His  argument  was,  however,  based  upon 
powers  actually  granted,  not  upon  an  assumption  of  national 
sovereignty  which  would  have  been  repudiated  by  the  great 
body  of  his  readers. 

War  powers  and  State  rights.  But  if  the  Constitution  has 
seen  to  it  that  Congress  shall  not  be  limited  in  the  means  which 
it  may  take  for  the  successful  prosecution  of  war  by  reason 
of  want  of  adequate  power  to  act,  it  has  left  to  be  settled 
by  inference  how  far  limitations  may  arise  in  consequence  of 
a  conflict  of  the  war  powers  of  Congress  with  other  clauses 
of  the  Constitution.  WTiere  the  conflict  is  with  normal  powers 
exercised  by  the  States  the  inference  would  seem  clear  that 
the  latter  must  give  way.  For  the  powers  "  reserved  "  to  the 
States  by  the  loth  Amendment  are  all  those  which  have  not 
been  expressly  delegated  to  Congress,  and  it  is  not  difficult 
to  conclude  that  in  so  far  as  the  powers  of  Congress  are  neces- 
sarily enlarged  in  time  of  war  the  powers  reserved  to  the  States 
are  to  that  extent  restricted.  As  we  shall  see  in  a  subse- 
quent chapter,  the  recent  war  led  the  Federal  Government  to 
enter  many  portions  of  the  field  of  normal  state  legislation 
which  were  completely  closed  to  it  in  times  of  peace.  With 
the  completion  of  demobilization  these  direct  encroachments 
came  to  an  end,  but  the  Federal  Government  has  continued  to 
exercise  a  number  of  activities  which  are  outside  of  its  normal 
range,  but  which  have  not  been  contested  by  the  States  because 
of  the  obvious  advantage  of  federal  action  under  the  circum- 
stances. 

Individual  rights  in  time  of  war.  The  situation  with  re- 
gard to  encroachments  upon  the  fundamental  rights  of  citizen- 
ship is  a  more  difficult  one  to  adjust.  As  a  general  principle 
it  may  be  stated  as  the  accepted  law  that  the  constitutional 
guarantees  of  personal  rights  are  not  absolute,  but  conditional 
guarantees.    This  is  true,  as  we  have  seen,  even  in  times  of 

1 "  Federalist,"  No.  23- 


THE  WAR  AND  THE  CONSTITUTION        121 

peace,  and  is  obviously  all  the  more  true  in  time  of  war  when 
the  conditions  which  may  call  for  a  restriction  upon  personal 
rights  are  so  much  more  urgent.  Two  questions  are  thus 
presented:  are  the  war  powers  of  Congress  so  far  paramount 
as  to  suspend  altogether  the  rights  guaranteed  by  the  Constitu- 
tion; And  if  not,  then  is  it  within  the  legislative  judgment 
of  Congress  to  decide  whether  the  necessity  exists  for  sus- 
pending those  rights  in  whole  or  in  part,  or  is  the  judicial 
branch  of  the  Government  the  ultimate  arbiter?  In  answer 
to  the  first  question  it  may  be  stated  in  the  language  of  a 
recent  decision  of  the  Supreme  Court,  in  which  the  validity  of 
war-time  prohibition  was  at  issue,  that  "  the  war  power  of  the 
United  States,  like  its  other  powers  and  like  the  police  powers 
of  the  States,  is  subject  to  applicable  constitutional  limita- 
tions." ^  The  controlling  precedent  upon  this  question  is  the 
important  case  of  Ex  parte  Milligan,^  decided  in  1866,  in 
which  a  majority  of  the  court  distinctly  repudiated  the  posses- 
sion of  any  absolute  war  powers  by  Congress  such  as  would 
give  it  the  right  to  set  aside  trial  by  jury  in  the  case  of  a 
civilian  who  had  committed  an  offense  against  the  criminal  law. 
"  The  Constitution  of  the  United  States,"  said  the  court  in  this 
case,  **  is  a  law  for  rulers  and  people,  equally  in  war  and  in 
peace,  and  covers  with  the  shield  of  its  protection  all  classes 
of  men,  at  all  times,  and  under  all  circumstances.  No  doc- 
trine, involving  more  pernicious  consequences,  was  ever  in- 
vented by  the  wit  of  man  than  that  any  of  its  provisions  can 
be  suspended  during  any  of  the  great  exigencies  of  government. 
Such  a  doctrine  leads  directly  to  anarchy  or  despotism,  but  the 
theory  of  necessity  on  which  it  is  based  is  false ;  for  the  Govern- 
ment, within  the  Constitution,  has  all  the  powers  granted  to 
it  which  are  necessary  to  preserve  its  existence,  as  has  been 
happily  proved  by  the  result  of  the  great  effort  to  throw  off 
its  just  authority."     It  follows  from  this  ruling  that  the  answer 

1  Hamilton  v.   Kentucky  Distilleries   and  Warehouse   Company,  de- 
cided December  15,  1919. 

2  4  Wallace's  Reports,  2. 


122       POLITICAL  SYSTEMS  IN  TRANSITION 

to  our  second  question  must  be  that  it  is  for  the  courts  of 
justice  to  decide  whether  the  circumstances  arising  out  of  the 
war  are  such  as  to  authorize  the  suspension  of  fundamental 
rights.  Congress  may  not,  therefore,  by  its  mere  legislative 
decree,  create  a  necessity  in  law  which  does  not  exist  in  fact, 
so  that  in  each  case  the  presumption  is  in  favor  of  the  con- 
tinuance of  the  enjoyment  of  fundamental  rights  in  time  of 
war,  and  the  burden  is  upon  the  Government  to  prove  that  the 
restrictions  placed  by  Congress  were  actually  called  for  by 
the  public  need.^ 

1  Specific  application  of  this  principle  will  be  found  in  the  cases  dis- 
cussed in  connection  with  the  enforcement  of  the  Espionage  and  Sedi- 
tion Acts.     See  below,  pp.  171-173. 


CHAPTER  VI 

WAR   POWERS   OF   THE   PRESIDENT 

Powers  of  government  and  administrative  organiza- 
tion separately  treated.  In  proceeding  to  examine  the 
actual  changes  introduced  into  the  Government  of  the  United 
States  as  a  means  of  adapting  itself  to  the  demands  of  the 
war,  it  will  help  to  present  the  situation  as  a  political  issue 
if  we  treat  separately  the  extension  of  the  functions  of  gov- 
ernment into  new  fields  of  activity  and  the  administrative 
organization  created  to  carry  into  effect  the  duties  thus  as- 
sumed. It  will  thus  be  possible  to  distinguish  between  de- 
fects in  the  political  machinery  due  to  want  of  power  in  the 
executive  department  to  take  the  necessary  action,  and  defects 
due  to  lack  of  proper  administrative  agencies  by  means  of 
which  the  powers  actually  granted  could  have  been  exercised 
to  best  advantage.  The  questions  arising  in  connection  with 
the  functions  of  government  relate  mainly  to  the  new  legisla- 
tion passed  by  Congress  to  meet  the  emergency.  This  new 
legislation  endowed  the  President  with  a  wide  range  of  powers 
and  enabled  him  as  chief  executive  to  bring  the  resources  of 
the  nation  to  bear  upon  the  support  of  the  armies  of  which 
he  was  commander-in-chief.  It  will  help  to  clear  the  ground 
for  a  discussion  of  these  new  executive  powers  if  we  consider 
first  the  scope  of  the  war  powers  conferred  upon  the  President 
by  the  Constitution  independently  of  any  auxiliary  legislation 
on  the  part  of  Congress. 

The  President  as  commander-in-chief  of  the  army  and 
aavy.  By  the  Constitution  the  Prfesident  is  made  "  commander- 
in-chief  of  the  army  and  navy  of  the  United  States,  and  of 
the  ^aiJjda  of  the  several  States,^  when  called  into  the  actual 


124       POLITICAL  SYSTEMS  IN  TRANSITION 

service  of  the  United  States."  In  pursuance  of  this  power 
the  President  has  authority  to  perform  all  those  functions 
which  by  their  nature  belong  to  the  position  of  commander- 
in-chief.  What  those  functions  are  the  Constitution  does  not 
define,  and  it  is  only  by  inference  that  they  can  be  held  to  include 
such  duties  as  relate  to  the  planning  of  campaigns,  the  dis- 
position of  military  and  naval  forces,  the  direction  of  opera- 
tions, and  the  execution  of  the  provisions  of  military  law. 
The  distinction  between  the  war  powers  of  the  President  and 
those  of  Congress  is  well  brought  out  in  a  concurring  opinion 
rendered  in  the  case  of  Ex  parte  Milligan,  in  which  the  Supreme 
Court  passed  upon  conditions  arising  during  the  Civil  War. 
"  Congress  has  the  power,"  said  the  four  members  of  the 
court,  "  not  only  to  raise  and  support  and  govern  armies,  but 
to  declare  war.  It  has,  therefore,  the  power  to  provide  by 
law  for  carrying  on  war.  This  power  necessarily  extends  to 
all  legislation  essential  to  the  prosecution  of  war  with  vigor 
and  success,  except  such  as  interferes  with  the  command  of 
the  forces  and  the  conduct  of  campaigns.  That  power  and 
duty  belong  to  the  President  as  Commander-in-Chief.  Both 
these  powers  are  derived  from  the  Constitution,  but  neither  is 
defined  by  that  instrument.  Their  extent  must  be  determined 
by  their  nature,  and  by  the  principles  of  our  institutions." 
No  more  in  war  than  in  peace  may  the  President  intrude  upon 
the  proper  authority  of  Congress  nor  Congress  upon  the  proper 
authority  of  the  President.  ''  Both  are  servants  of  the  people, 
whose  will  is  expressed  in  the  fundamental  law."  *     The  re- 

^4  Wallace's  Reports,  2.  The  distinction  is  further  elaborated  by 
Professor  Fairlie  as  follows:  "It  is  thus  difficult,  if  not  impossible, 
to  draw  a  strict  line  of  demarcation  between  the  autliority  of  Con- 
gress and  that  of  the  President.  But  the  general  principles  of  de- 
marcation can  be  indicated;  and  in  practice  there  have  been  very  few 
conflicts.  Congress  regulates  what  is  of  general  and  permanent  im- 
portance, while  the  President  determines  all  matters  temporary  and 
not  general  in  their  nature.  Thus  Congress  authorizes  the  total  num- 
ber of  men  in  the  array,  their  distribution  among  the  different  branches 
of  the  service,  the  number  and  kind  of  arms,  the  location  and  char- 
acter of  forts ;  and  the  President,  as  chief  executive,  must  car»y  out 


WAR  POWERS  OF  THE  PRESIDENT         125 

strictions  upon  the  control  by  the  President  of  the  appoint- 
ment of  the  officers  of  the  army  and  navy  are  the  result 
of  another  clause  of  the  Constitution  which  provides  for  the 
appointment  by  the  President,  with  the  advice  and  consent  of 
the  Senate,  of  ambassadors,  judges,  and  ''all  other  officers  of 
the  United  States  whose  appointments  are  not  herein  other- 
wise provided  for,  and  which  shall  be  established  by  law." 
As  a  matter  of  fact,  however.  Congress,  acting  under  a  subse- 
quent clause  of  the  same  paragraph  empowering  it  to  "  vest 
by  law  the  appointment  of  such  inferior  officers,  as  they  think 
proper,  in  the  President  alone,"  has  not  only  made  it  a  matter 
of  form  to  confirm  the  nominations  of  the  President  to  the 
higher  posts  in  the  army  and  navy,  but  has  authorized  the 
President  to  appoint  subordinate  officers  without  sending  their 
names  before  the  Senate, 

The  President's  auiuuiity  over  the  state  militia.  It  is  a 
curious  feature  of  our  federal  system  of  government,  viewed 
from  the  standpoint  of  the  present  day,  that  while  the  power 
to  organize,  arm,  and.  discipline  the  militia  was  given  to  Con- 
gress, the  Constitution  reserves  to  the  several  States  the  appoint- 
ment of  the  officers  and  the  authority  of  training  the  militia 
according  to  the  discipline  prescribed  by  Congress.  The  pur- 
pose of  the  provision  was  to  secure  uniformity  in  the  training 
of  the  militia,  without  arousing  the  fears  of  the  States  that  the 
militia,  when  placed  under  the  direction  of  the  national  author- 
ity, might  be  "  rendered  subservient  to  the  views  of  arbitrary 
power."  ^     The  result  of  the  provision  is,  however,  that  when 

the  statutes  on  these  matters.  But  the  President,  as  commander-in- 
chief,  decides  where  the  different  parts  of  the  army  and  navy  are  to 
be  stationed  and  moved,  the  strength  and  composition  of  garrisons  and 
field  forces,  and  the  distribution  of  arms  and  ammunition.  Congress 
has  power  to  declare  war  (although  hostilities  may  commence  without 
such  a  declaration),  and  decides  what  means  it  will  grant  to  conduct 
the  war;  but  the  President  decides  in  what  way  the  war  shall  be  con- 
ducted, directs  campaigns  and  establishes  blockades,  and  also  may  do 
whatever  is  necessary  to  weaken  the  fighting  power  of  the  enemy." 
"  The  National  Administration  of  the  United  States  of  America,"  p.  33. 
1 "  The  Federalist,  No.  29. 


126       POLITICAL  SYSTEMS  IN  TRANSITION 

war  breaks  out  and  the  President,  under  the  authority  of  Con- 
gress, calls  forth  the  state  militia  to  assist  the  Government  in 
the  prosecution  of  the  war,  he  finds  at  his  disposal  a  body  of 
men  disciplined  according  to  a  uniform  system,  but  commanded 
by  officers  who  may  in  many  cases  be  entirely  unfit  for  the 
duties  they  are  called  upon  to  perform.  It  then  becomes  neces- 
sary, as  at  the  beginning  of  the  present  war,  for  the  -federal 
military  staff  to  institute  an  investigation  and*  examination 
directed  towards  the  elimination  of  the  appointees  of  the  States 
who  do  not  measure  up  to  the  standards  in  force  in  the 
'*  regular "  army.  The  troops  themselves  constituting  the 
militia  pass  completely  under  federal  control  when  once  called 
into  service. 

Political  pov/ers  assumed  by  the  President  during  the 
Civil  War.  The  powers  exercised  by  the  President  as  com- 
mander-in-chief of  the  'army  and  navy  are  strictly  military 
powers  and  cannot  be  used  outside  of  that  restricted  field. 
There  are,  is  it  true,  precedents  to  the  contrary  created  during 
the  Civil  War  when  the  President  assumed  the  power  to  de- 
clare martial  law  and  to  exercise  other  political  powers  not 
specifically  conferred  upon  him.  While  President  Buchanan 
felt  himself  powerless  to  act,  in  the  absence  of  authority  from 
Congress,  to  compel  the  seceding  States  to  obey  the  laws  of 
the  Union,  President  Lincoln  acted  with  fewer  scruples  as  to 
the  powers  of  his  office.  The  most  striking  instance  of  his 
arbitrary  interpretation  of  his  duties  as  chief  executive  was 
in  connection  with  his  attempts  to  suppress  opposition  to  the 
poHcies  of  the  Government  from  persons  in  the  North  who 
sympathized  with  the  cause  of  the  Southern  States.  Secret 
service  agents  of  the  Government  undertook  to  search  private 
houses  without  warrant  in  spite  of  the  provisions  of  the  Con- 
stitution, and  large  numbers  of  citizens,  including  editors, 
judges,  and  members  of  a  state  legislature,  being  suspected  of 
disloyalty,  were  arrested  by  military  order  and  confined  in 
prison.  The  President  thereupon  proclaimed  the  suspension 
of  the  writ  of  habeas  corpus,  interpreting  the  Constitution  as 


WAR  POWERS  OF  THE  PRESIDENT  127 

giving  that  power  to  the  Executive,  and  the  protest  of  Chief 
Justice  Taney  proved  unavailing.  Subsequently  Congress,  by 
the  Habeas  Corpus  Act  of  1863,  formally  sanctioned  the  mili- 
tary courts  and  authorized  the  President  to  -suspend  the  writ.  It 
was  only  when  the  war  was  over  and  the  emergency  had  been 
met  that  the  Supreme  Court  of  the  United  States  entered  a 
judgment  to  the  effect  that  neither  the  President  nor  Congress 
had  any  power  under  the  Constitution  to  declare  martial  law 
and  set  up  military  courts  for  the  trial  of  civilians  in  regions 
"  where  the  courts  are  open  and  their  process  unobstructed." 
"  Civil  liberty  and  this  kind  of  martial  law,"  said  the  court, 
"  cannot  endure  together ;  the  antagonism  is  irreconcilable  and, 
in  the  conflict,  one  or  the  other  must  perish."  ^  While  the 
question  whether  the  President  may  constitutionally  suspend 
the  writ  of  habeas  corpus  upon  his  own  initiative  has  not  been 
passed  upon  directly  by  the  Supreme  Court,  the  weight  of  au- 
thority appears  to  be  that  he  cannot  do  so,  but  must  await 
authorization  from  Congress.  The  suspension  of  the  writ  does 
not  of  itself  affect  the  jurisdiction  of  the  civil  courts  or  the 
application  of  the  common  law. 

Political  powers  exercised  by  President  Wilson.  During 
the  recent  war  the  President  wisely  refrained  from  exercising 
the  arbitrary  powers  assumed  by  President  Lincoln  during  the 
Civil  War.  It  is  true  that  the  emergency  was  not  as  great, 
for  while  there  were  numerous  agents  of  the  enemy  upon  the 
soil  of  the  country  and  numerous  sympathizers  ready  to  aid  and 
abet  them,  yet  the  United  States  was  sufficiently  far  removed 
from  the  theater  of  the  conflict  to  be  able  to  bring  offenders  to 
terms  by  the  normal  processes  of  the  law.  But  while  the 
President  did  not  assume  any  such  extraordinary  powers,  he 
used  the  collateral  powers  of  his  office  to  obtain  what  political 
advantage  he  might  over  the  enemy.  In  this  respect  his  policy 
offers  a  parallel  to  Lincoln's  Emancipation  Proclamation,  ex- 
cept in  that  Lincoln's  act  was  without  constitutional  warrant. 
Having  no  authority  from  Congress,  and  acting  solely  in  his 

^Ex  parte  Milligan,  4  Wallace,  2;  1866. 


128       POLITICAL  SYSTEMS  IN  TRANSITION 

character  of  commander-in-chief,  Lincoln  issued  on  September 
23,  1862,  a  proclamation  freeing  the  slaves  in  the  enemy  states. 
The  proclamation  was  in  form  a  war  measure  and  affected 
only  those  states  not  occupied  by  the  Union  forces.  Its  obvious 
design  was  to  weaken  the  enemy ;  but  underlying  this  purpose 
was  the  intention  of  the  President,  who  had  previously  made 
the  question  of  slavery  subordinate  to-  that  of  preserving  the 
Union,  to  create  a  new  and  higher  moral  issue  which  might 
serve  as  a  standard  around  which  many  in  the  North  who  were 
lukewarm  in  their  support  of  the  Union  might  rally.  It  did 
in  fact  have  this  effect  in  the  end,  but  at  the  time  of  its  issue 
it  seemed  that  the  President  had  misjudged  public  opinion, 
for  the  elections  which  followed  resulted  in  anti-war  majori- 
ties in  a  number  of  the  Northern  states  which  previously  had 
been  strongly  Republican.  But  henceforth  the  war  became  not 
merely  a  war  to  save  the  Union  but  a  war  to  free  the  slaves, 
and  on  the  &trength  of  that  new  issue  the  federal  armies  as- 
sumed the  role  of  liberators  rather  than  of  conquerors. 

Grounds  of  war,  and  objects  sought  by  it.  Whether  with 
conscious  or  unconscious  political  motives,  the  same  necessity 
of  rising  from  technical  grounds  to  a  higher  plane  of  moral 
appeal  was  impressed  upon  President  Wilson  from  the  very 
beginning  of  the  war.  The  distinction  between  the  legal  issues 
upon  which  the  United  States  was  led  to  abandon  its  position 
of  neutrality  and  declare  war  upon  Germany  and  the  ideals 
which  were  set  before  the  people  as  the  object  to  be  accom- 
plished by  the  war  is  a  striking  commentary  upon  the  illogical 
character  of  the  international  law  which  prevailed  in  19 17.* 
But  our  present  interest  is  in  the  use  by  President  Wilson  of 
his  constitutional  position  as  spokesman  for  the  United  States 
before  the  world  to  create  popular  support  for  the  war  which 
the  technical  grounds  of  the  conflict  might  have  been  inadc- 

AThus,  it  is  difficult  to  understand  how  a  nation  could  remain  neu- 
tral in  the  presence  of  international  crime  so  long  as  it  was  not  itself 
the  victim,  and  yet  make  the  redress  of  that  crime  part  of  its  war  aims 
once  it  had  been  brought  into  the  war  because  of  a  violation  of  its 
own  rights. 


WAR  POWERS  OF  THE  PRESIDENT  129 

quate  to  win.  The  address  of  the  President  to  Congress  on 
April  2,  1917,  calling  for  a  declaration  of  war  against  Germany 
refers  to  the  renewal  of  the  submarine  warfare  without  any 
restrictions,  and  recites  the  wrong  done  to  the  United  States 
in  the  persons  of  its  citizens  and  in  its  property.  Congress  was 
then  advised  to  declare  that  the  acts  of  Germany  constituted 
war  against  the  United  States,  and  to  accept  the  status  of  bel- 
ligerency thus  thrust  upon  it.  The  rest  of  the  address  develops 
in  detail  the  "  motives  "  and  the  "  objects  "  of  the  United  States 
in  entering  the  war.  "  Our  object  now,  as  then,  is  to  vindicate 
the  principles  of  peace  and  justice  in  the  life  of  the  world 
as  against  selfish  and  autocratic  power,  and  to  set  up  among 
the  really  free  and  self -governed  peoples  of  the  world  such 
a  concert  of  purpose  and  of  action  as  will  henceforth  ensure 
the  observance  of  those  principles.  .  .  .  We  are  glad  ...  to 
fight  thus  for  the  ultimate  peace  of  the  world  and  for  the 
liberation  of  its  peoples,  the  German  peoples  included;  for  the 
rights  of  nations,  great  and  small,  and  the  privilege  of  men 
everywhere  to  choose  their  way  of  life  and  of  obedience.  The 
world  must  be  made  safe  for  democracy."  No  one  will  doubt 
the  power  of  the  President's  appeal  at  the  time  it  was  made. 
It  aroused  the  spirit  of  the  crusader  in  the  minds  of  thousands 
who  would  have  responded  but  lukewarmly  to  the  call  to  defend 
American  commerce  against  the  illegal  German  blockade,  and 
it  sanctified  as  it  were  the  narrower  s-pirit  of  patriotism  and 
transformed  it  into  devotion  to  the  cause  of  humanity  itself. 
Europe  heard  the  appeal  and  new  heart  was  infused  into  the 
ranks  of  the  Allies.  For  the  President's  voice  was  the  voice  of 
America,  as  the  voice  of  no  other  public  man  could  have  been. 
The  recognition  of  new  states.  In  one  other  important 
respect  President  Wilson  used  his  constitutional  position  as 
spokesman  of  the  nation  in  the  conduct  of  foreign  affairs  to 
assist  the  cause  of  the  armies  in  the  field.  Having  proclaimed 
it  as  one  of  the  objects  of  the  war  to  secure  the  liberation  of 
oppressed  peoples  on  the  principle  of  the  self-determination  of 
distinct  national  groups,  the  President  followed  the  policy  of 


I30      POLITICAL  SYSTEMS  IN  TRANSITION 

encouraging  several  of  those  groups  to  break  away  from  their 
allegiance  to  Austria  and  to  declare  their  independence  while 
the  war  was  still  in-  progress.  The  negotiations  looking  to 
this  result  could  not,  of  course,  be  carried  on  with  the  duly 
elected  representatives  of  those  peoples,  since  the  condition  of 
war  precluded  an  organized  movement  on  their  part.  It  was, 
however,  possible  in  the  case  of  the  Czechoslovaks  to  have 
dealings  with  a  National  Council  having  headquarters  at  Wash- 
ington 'and  Paris ;  and  in  September,  1918,  Secretary  Lansing 
communicated  to  the  President  of  the  National  Council  the 
recognition  by  the  United  States  of  the  belligerency  of  the 
Czechoslovaks  and  -the  recognition  of  the  National  Council  as 
the  de  facto  government.  The  official  recognition  of  an  ab- 
sentee government  in  command  of  a  number  of  distinct  armies 
fighting  against  the  nation  of  which  their  territory  was  still  a 
de  facto  part,  and  to  which  thjsir  brethren  in  Bohemia,  Moravia, 
and  Slovakia  were  still  rendering  a  formal  allegiance,  was  of  a 
unique  character  in  the  history  of  international  law.  The 
traditional  rule  of  international  law  has  been  that  a  new  na- 
tion will  be  recognized  by  the  existing  members  of  the  family 
of  nations  only  when,  after  successful  revolution  against  the 
state  of  which  it  was  formerly  a  part,  it  has  given  evidence  of 
its  ability  to  maintain  itself.  In  most  cases  the  new  com- 
munity is  recognized  as  a  de  facto  belligerent  before  its  final 
recognition  as  a  dc  jure  state  is  accorded.  In  every  instance 
the  claimant  for  international  recognition  must  have  obtained 
possession  of  definite  territory  and  must  have  organized  a  gov- 
ernment capable  of  giving  expression  to  the  will  of  its  people. 
But  in  the  case  of  the  recognition  of  the  Czechoslovak  nation 
these  conditions  were  not  fulfilled.  In  the  case  of  the  Jugo- 
slavs semi-official  recognition  was  given  as  early  as  May  29, 
19 18,  when  the  Department  of  State  announced  at  the  time  of 
the  Congress  of  the  Oppressed  Races  of  Austria-Hungary  held 
in  Rome,  "  that  the  nationalistic  aspirations  of  the  Czechoslo- 
vaks and  the  Jugoslavs  for  freedom  have  the  earnest  sympathy 
of  this  government."     But  owing  to  the  internal  difficulties 


WAR  POWERS  OF  THE  PRESIDENT         131 

attending  the  composite  character  of  the  new  state,  no  further 
steps  could  be  taken  in  the  direction  of  recognizing  its  de  facto 
independence  until  the  meeting  of  the  Peace  Conference  in 
Paris. 

The  President  as  the  agent  of  Congress.  In  addition  to  the 
powers  conferred  upon  the  President  by  the  Constitution  in 
respect  to  the  army  and  navy  and  the  conduct  of  the  foreign 
affairs  of  the  country,  there  is  the  great  body  of  war  powers 
which  he  exercises  in  pursuance  of  authority  conferred  upon 
him  by  Congress.  By  the  Constitution  the  "  executive  power '' 
is  vested  in  the  President  and  he  is  called  upon  to  "  take  care 
that  the  laws  be  faithfully  executed."  He  is  thus  made,  in 
respect  to  these  executive  functions,  as  it  were  the  agent  of 
the  legislative  body  for  the  purpose  of  enforcing  its  decrees, 
and  by  the  letter  of  the  Constitution  he  is  supposed  only  to 
act  where  there  is  a  definite  law  to  be  enforced,  f  While  it  was 
not  originally  intended  that  the  administrative  departments  of 
the  Government,  except  in  respect  to  political  functions,  should 
be  under  his  direct  control  and  the  heads  of  these  departments 
subject  to  his  personal  direction,  the  obvious  impossibility  of 
having  the  President  responsible  for  the  execution  of  the 
laws  without  having  a  voice  in  the  manner  in  which  the  laws 
were  being  executed  led  to  his  gradual  assumption  of  control 
over  the  departments,  and  to  the  acquiescence  both  of  .Con- 
gress and  of  the  courts  in  the  exercise  of  such  authority.  The 
result  was  that  while  Congress  continued  to  prescribe  in  con- 
siderable detail  the  organization  of  the  administrative  depart- 
ments and  the  duties  of  the  heads  of  the  departments,  the 
President  came  to  exercise  control,  backed  by  his  power  of  re- 
moval from  office,  over  the  performance  of  their  duties  by  the 
administrative  heads,  and  thus  became  in  actual  practice  the 
head  of  the  administrative  system.^ 

Power  of  the  President  to  issue  regulations.  The  posi- 
tion of  the  President  as  administrative  chief  has  been  greatly 

1  See  W.  W.  Willoughby,  "  Constitutional  Law  of  the  United 
States,"  II,  pp.  1156-HS9. 


132      POLITICAL  SYSTEMS  IN  TRANSITION 

strengthened  by  the  wide  latitude  allowed  by  Congress  to  the 
Executive  in  framing  the  "  regulations  "  by  which  the  provisions 
of  various  acts  are  to  be  put  into  effect.  While  Congress  has 
the  power  to  frame  its  legislation  so  as  to  cover  the  most  mi- 
nute details,  it  must  under  ordinary  circumstances  limit  the 
terms  of  the  law  to  a  statement  of  general  principles  and  their 
more  important  applications,  and  is  obliged  to  delegate  to  the 
Executive  the  power  to  define  the  conditions  under  which  the 
provisions  of  the  law  shall  be  effective.  The  result  has  been 
the  growth  of  a  great  body  of  executive  regulations,  some  of 
them  in  the  form  of  legal  codes,  governing  the  administra- 
tion of  the  several  departments  of  the  Government.  These 
regulations  are  for  the  most  part  expressly  authorized  by 
Congress,  and  may  be  issued  either  by  the  President  or  more 
often  by  the  heads  of  the  respective  departments.  In  other 
cases  executive  regulations  are  issued  by  the  President  or  by 
subordinate  administrative  officers  in  the  exercise  of  an  author- 
ity implied  from  the  nature  of  the  law  to  be  executed  or  the 
duty  to  be  performed  by  the  administrative  departments.  In 
Great  Britain  it  was  found  necessary  at  the  beginning  of  the 
war  to  increase  greatly  the  scope  of  ''  orders  in  Council,"  which 
the  Cabinet  as  the  executive  body  of  the  Government  might 
issue  to  meet  contingencies  which  could  not  have  been  fore- 
seen by  Parliament.  Thus  we  have  seen  that  the  Defense  of 
the  Realm  Act  was  followed  by  a  series  of  *'  regulations  "  ten 
times  the  length  of  the  original  act,  which,  considering  the 
importance  of  its  subject-matter,  was  remarkably  brief.  So  too, 
in  the  United  States,  Congress  found  it  necessary  to  confer 
upon  the  President  even  more  liberal  powers  in  the  issuance 
of  executive  regulations  than  had  been  previously  exercised 
by  him.  For  example,  the  Food  and  Fuel  Control  Act  author- 
ized the  President  among  other  things  to  "  fix  the  price  of  coal 
and  coke  and  to  establish  rules  for  the  regulation  of  their 
production,  distribution,  and  storage";  and  it  provided  that  if 
in  the  opinion  of  the  President  any  producer  failed  to  conform 
to  the  regulations  his  plant  might  be  requisitioned  by  the  Presi- 


WAR  POWERS  OF  THE  :PRESIDENT         133 

dent  and  operated  during  the  period  of  the  war.  The  signifi- 
cant feature  of  these  "  regulations  "  is  that  in  many  cases  the 
penalties  of  the  law  attached  to  the  violation  of  them  in  their 
specific  terms.  In  both  Great  Britain  and  the  United  States 
this  is  a  departure  from  the  traditions  of  Anglo-Saxon  law, 
which  require  that  in  criminal  statutes  the  offense  to  which  the 
penalty  is  attached  shall  be  defined  by  the  legislature  in  the 
most  specific  terms  possible.  So  great  were  the  powers  pos- 
sessed by  President  Wilson  that  for  the  time  his  position  was 
one  of  virtual  dictatorship  over  a  wide  field  covering  whatever 
activities  of  the  people  might  in  the  opinion  of  Congress  be 
made  to  contribute,  whether  affirmatively  by  regulation  or 
negatively  by  prohibition,  to  the  strengthening  of  the  military 
arm  of  the  government.^ 

Executive  acts  without  warrant  from  Congress.  More- 
over, the  power  of  the  President  as  chief  executive  in  many 
cases  went  beyond  the  limits  of  statutory  authorization.  In 
theory  the  President  can  only  act  in  so  far  as  the  legislative 
body  has,  by  its  enactments,  given  him  laws  to  execute.  Un- 
less Congress  has  specifically  given  him  power  to  act,  his  hand 
is  stayed.  But  in  actual  practice  Presidents  have  frequently 
undertaken  to  issue  instructions  and  to  take  executive  action 
in  cases  where  there  was  no  specific  statutory  provision  cover- 
ing the  case.  In  these  instances  they  have  interpreted  their 
constitutional  obligation  to  *'  take  care  that  the  laws  are  faith- 
fully executed  "  as  authorizing  them  to  resort  to  measures  of 
enforcement  not  contemplated  by  Congress  because  of  its  failure 
to  anticipate  the  particular  need.  When  the  free  passage  of 
the  mails  was  being  impeded  by  a  strike  of  railway  employees 
in  Chicago  in  1893,  President  Cleveland  considered  himself 
authorized  to  call  out  the  federal  troops  to  remove  the  ob- 
struction, even  though  no  provision  had  been  made  for  such 

^The  extent  to  which  executive  regulations,  in  the  form  of  supple- 
mentary laws,  have  come  to  control  the  public  administration  of  the 
United  States  may  be  gathered  from  an  article  by  Professor  J.  A. 
Fairlie,  "Administrative  Legislation,"  "Michigan  Law  Review,"  Janu- 
ary, 1920. 


134      POLITICAL  SYSTEMS  IN  TRANSITION 

action.  In  like  manner  the  Attorney-General  of  the  United 
States  authorized  in  1889  the  appointment  of  a  United  States 
marshall  for  the  purpose  of  protecting  a  federal  judge  in  the 
performance  of  his  official  duties,  although  there  was  no  law  of 
Congress  providing  for  such  protection;  and  the  action  thus 
taken  by  the  Department  of  Justice  was  upheld  by  the  Supreme 
Court  of  the  United  States  as  being  within  a  just  interpre- 
tation of  the  constitutional  obligation  of  the  President.^  The 
court  put  to  itself  in  this  case  the  important  question  whether 
the  executive  duty  of  the  President  is  *'  limited  to  the  enforce- 
ment of  acts  of  Congress  or  of  treaties  of  the  United  States 
according  to  their  express  terms,  or  does  it  include  the 
rights,  duties  and  obligations  growing  out  of  the  Constitution 
itself,  our  international  relations,  and  all  the  protection  im- 
plied by  the  nature  of  the  Government  under  the  Constitution?  " 
The  question  was  answered  by  the  court  in  the  affirmative  in 
so  far  as  the  special  issue  before  it  was  concerned.  As  a 
general  proposition,  however,  the  interpretation  of  the  execu- 
tive power  of  the  President  suggested  by  the  court  would  con- 
stitute a  serious  encroachment  upon  the  comprehensive  legisla- 
tive powers  assigned  to  Congress.  For  it  is  to  Congress  that 
the  Constitution  gives  the  power  "  to  make  all  laws  which 
shall  be  necessary  and  proper  for  carrying  into  execution  "  not 
only  the  powers  granted  to  Congress  itself  but  all  other 
powers  vested  by  the  Constitution  in  any  department  or  of- 
ficer of  the  government. 

Wide  scope  of  the  executive  pow^er.  The  result  of  the 
transfer  by  Congress  to  the  President  of  the  express  authority 
to  make  executive  regulations,  and  of  the  authority  assumed 
by  the  President  in  other  cases  either  from  an  implied  authori- 
zation of  Congress  or  directly  from  his  constitutional  func- 
tions, is  that  it  is  difficult  at  times  to  trace  the  precise  source 
from  which  the  President  derives  his  power  in  a  given  case.  ^ 
The  point  might  be  regarded  as  of  no  partcular  consequence  in 
normal  times,  but  becomes  one  of  considerable  interest  in  time 

1  In  re  Nagle,  135  U.  S.,  i. 


WAR  POWERS  OF  THE  PRESIDENT         135 

of  war  when  great  pressure  is  brought  to  bear  upon  the  execu- 
tive branch  of  the  Government  to  undertake  functions  which  are 
believed  necessary  to  meet  the  emergency,  but  which  have  not 
been  directly  authorized  by  Congress.  An  examination  of 
the  wide  range  of  activities  entered  upon  by  the  Government 
during  the  recent  war  will  disclose  many  assertions  of  power 
by  the  executive  branch  for  which  only  the  remotest  statutory 
authorization  can  be  found.  The  steps  taken  by  the  Presi- 
dent to  bring  about  an  amicable  adjustment  of  the  relations 
between  labor  and  capital  in  respect  to  war  industries,  and 
particularly  the  creation  of  the  Committee  on  Public  Informa- 
tion, are  instances  of  such  executive  action.  In  the  following 
pages  which  describe  the  legislation  adopted  by  Congress  to 
enable  the  President  to  prosecute  the  war  more  effectively, 
we  shall  find  the  President  at  times  acting  in  pursuance  of 
powers  directly  conferred,  at  times  exercising  powers  implied 
from  the  existence  of  the  administrative  departments  and  the 
change  in  their  functions  necessitated  by  the  circumstances  of 
the  war,  and  again  at  times  exercising  powers  for  which  there 
was  no  direct  or  indirect  statutory  authorization,  but  which 
might  be  inferred  from  the  general  constitutional  position  of  the 
President  as  chief  executive.  That  the  sum  total  of  the  powers 
thus  exercised  constituted  an  enormous  accession  of  executive 
control  over  the  life  of  the  country  is  manifest  to  the  observer 
at  every  turn.  The  need  was  urgent,  the  President  endeavored 
to  meet  the  demand,  Congress  acquiesced  with  more  or  less  pro- 
test according  to  the  circumstances,  and  the  public  at  large, 
having  principally  in  view  the  winning  of  the  war,  gave  its  ap- 
proval without  regard  to  the  technicalities  of  constitutional 
law.^ 

The  Committee  on  Public  Information.  One  of  the  most 
important  of  the  executive  agencies  established  by  the  Govern- 
ment for  the  more  successful  prosecution  of  the  war  was  the 

^The  powers  of  the  President  will  be  further  discussed  in  connec- 
tion with  the  organization  of  the  government  in  time  of  war  and  the 
relation  of  the  executive  department  to  Congress.    See  below,  p.  185. 


136      POLITICAL  SYSTEMS  IN  TRANSITION 

body  known  as  the  Committee  on  Public  Information.  On 
April  14,  1917,  the  President  issued  an  executive  order  creat- 
ing this  committee  and  appointing  as  members  of  it  the  Secre- 
taries of  State,  War,  and  the  Navy,  together  with  a  civilian, 
Mr.  Creel,  as  executive  head  of  Committee.  Its  general  pur- 
pose was  to  control  the  publication  of  information  of  a  military 
character,  acting  in  this  capacity  as  a  sort  of  censorship  board, 
and  on  the  other  hand  to  act  itself  as  an  organ  of  publicity  by 
giving  out  authoritative  information  on  those  matters  which  it' 
was  believed  could  be  safely  made  public.  We  shall  see  below 
that  the  several  attempts  made  to  have  Congress  adopt  legis- 
lation authorizing  a  censorship  of  the  press  failed  in  the  pres- 
ence of  the  traditional  principles  of  the  American  people  in 
that  matter ;  but  that  upon  the  failure  of  a  compulsory  censor- 
ship a  voluntary  system  was  acquiesced  in  by  the  press  in  the 
form  of  the  submission  of  doubtful  news  to  the  Committee  on 
Public  Information  for  its  advice.  On  its  part  the  Com- 
mittee prepared  for  the  press  a  statement  of  the  character  of 
the  news  which  the  Government  deemed  it  hurtful  to  be  given 
publicity,  and  appealed  to  the  patriotism  of  the  press  to  sup- 
port the  program  of  the  Government.  At  the  same  time  a 
Division  of  News  was  created  to  furnish  the  smaller  newspapers 
with  a  weekly  summary  of  current  war  news. 

Educational  work  of  the  Committee.  Apart  from  its  re- 
lations to  the  press  the  Committee  on  Public  Information  under- 
took to  carry  on  a  nation-wide  educational  propaganda,  which 
proved  to  be  a  most  valuable  means  of  rallying  the  people  to 
the  support  of  the  Government.  Pamphlets  were  issued  set- 
ting forth  the  grounds  upon  which  the  United  States  was  led 
to  declare  war  against  Germany,  the  objects  and  aims  which 
the  United  States  had  in  view  as  the  result  to  be  attained  by  a 
successful  war,  and  the  character  and  conduct  of  the  Govern- 
ment against  which  the  United  States  was  fighting.^     These 

i**How  the  War  Came  to  America"  and  '*  The  War  Message  and 
the  Facts  Behind  It,"  to  cite  the  titles  of  but  two  of  the  series,  con- 
tain a  review  of  the  historical  policy  of  the  United  States  in  respect  to 


WAR  POWERS  OF  THE  PRESIDENT         137 

pamphlets  were  widely  distributed,  and  were  supplemented  by 
articles  written  by  prominent  writers  and  syndicated  in  the  re- 
presentative newspapers  of  the  country.  A  daily  Official  Bul- 
letin was  published  in  which  authoritative  information  was 
given  of  the  military  and  civil  activities  of  the  Government,  and 
which  was  displayed  in  the  post-offices  of  the  country  and  cir- 
culated at  a  minimum  price.  A  Division  of  Four-Minute  Men 
was  established  by  means  of  which  the  voluntary  services  of 
speakers  were  engaged  for  brief  addresses  during  the  inter- 
missions at  motion-picture  theaters;  while  photographs  were 
taken  and  motion-picture  films  prepared  as  a  means  of  describ- 
ing in  a  more  graphic  way  the  work  of  the  various  branches  of 
the  government.  At  the  same  time  the  volunteer  services  of 
artists  and  of  advertising  agencies  were  enlisted  for  the  pur- 
pose of  educating  the  public  by  means  of  posters,  cartoons,  and 
newspaper  advertisements.  The  remarkable  unanimity,  con- 
sidering the  diversity  of  the  population  of  the  United  States  in 
race  and  traditions,  with  which  the  public  responded  to  the 
demands  made  upon  them  by  the  Government  must  be  ascribed 
in  no  little  part  to  the  educational  campaign  thus  conducted. 

Criticism  of  the  work  of  the  Committee.  It  is  easy,  after 
the  event,  to  point  out  the  defects  in  the  work  performed  by  the 
Committee  on  Public  Information.  On  the  credit  side  of  its 
account  it  may  be  said  that,  considering  the  wide  range  of 
duties  undertaken  by  the  Committee,  its  work  was  on  the  whole 
accomplished  with  considerable  ability  and  energy.  The  task 
which  it  set  to  itself  was  a  difficult  one,  but  the  Committee 
was  able  to  enlist  the  services  of  so  many  willing  and  compe- 
tent volunteers  that  within  an  exceptionally  short  time  it  came 
to  be  a  sort  of  university  extension  bureau  drawing  to  its 
courses  the  entire  citizen  body  of  the  nation  and  bringing  within 
its  curriculum  every  aspect  of  general  knowledge  bearing  upon 

foreign  questions  and  an  explanation  of  the  new  development  of  our 
policy  during  the  period  from  August,  1914,  to  April,  1917,  together 
with  an  annotated  text  of  the  President's  message  calling  for  a  de- 
claration of  war  by  Congress  against  Germany. 


138      POLITICAL  SYSTEMS  IN  TRANSITION 

the  war.  At  the  same  time,  regarding  the  Committee  as  a 
government  institution  and  judging  it  upon  that  basis,  it  must 
be  emphasized  that  the  mistakes  which  it  made  on  a  number  of 
occasions  were  so  serious  as  to  serve  as  a  warning  against 
resort  to  such  agencies  in  the  future  without  a  much 
more  careful  determination  in  advance  of  the  character 
of  the  work  they  are  to  perform.  To  convey  knowledge  and 
to  carry  on  propaganda  are  incompatible  functions;  yet  this 
was  the  dual  aim  which  the  Committee  appeared  to  have  in 
view  in  many  of  its  appeals  to  the  public.  An  agency  of 
information  which  has  the  sanction  of  the  Government  behind 
it  cannot  properly  follow  the  methods  of  the  partisan  editorial 
writer.  While  the  pamphlet  publications  of  the  Committee 
were  in  most  cases  the  work  of  scholars  who  sought  to  state 
the  truth  with  no  more  bias  than  is  inseparable  from  articles 
written  with  a  political  purpose,  other  means  of  imparting  in- 
formation resorted  to  by  the  Committee,  such  as  newspaper 
advertisements  and  in  a  lesser  degree  its  own  Official  Bulletin, 
frequently  distorted  the  truth  in  the  effort  to  produce  the  proper 
impression  upon  the  thoughtless  and  the  uneducated.  Propa- 
ganda such  as  the  publication  of  the  Sisson  documents,  relating 
to  the  relations  between  the  Bolsheviki  and  the  German  Govern- 
ment, without  more  careful  examination  of  their  authenticity, 
helped  to  discredit  the  work  of  the  Committee  in  other  fields. 
Need  of  an  agency  of  general  information  on  political 
problems.  A  Committee  on  Public  Information,  properly  con- 
ducted, is  a  need  of  peace  as  well  as  of  war.  The  work  of  the 
Creel  Committee,  which  discontinued  its  activities  shortly  after 
the  signing  of  the  armistice,  gave  valuable  evidence  of  the  pos- 
sibilities of  useful  service  contained  in  such  an  agency.  In 
the  first  place  it  showed  a  way  of  reaching  the  great  body  of 
the  people  to  obtain  their  cooperation  with  federal,  state,  and 
city  agencies  in  matters,  such  as  those  relating  to  the  public 
health  and  the  conservation  of  natural  resources  and  food 
supplies,  in  respect  to  which  the  administration  and  enforce- 
ment of  the  law  are  impossible  without  the  intelligent  support 


WAR  POWERS  OF  THE  PRESIDENT  139 

of  those  who  are  to  benefit  from  it.  In  the  second  place7  al- 
though it  did  not  meet  the  need,  it  suggested  a  way  in  which 
the  pubHc  may  be  given  precise  information  with  regard  to 
the  facts  involved  in  a  number  of  problems  before  the  country. 
More  and  more  public  opinion  is  being  called  upon  to  act  as  a 
court  of  arbitration  in  disputes  between  employers  and  em- 
ployees in  matters  where  the  public  convenience  is  vitally  in- 
volved. In  the  case  of  the  strikes  in  the  steel  mills  and  in  the 
coal  mines  in  October  and  November,  1919,  the  issues  in- 
volved were  in  a  very  real  sense  brought  before  the  court  of 
public  opinion  for  settlement,  and  public  opinion  was  obliged 
to  render  its  decision  without  having  at  hand  an  impartial  state- 
ment of  the  facts  upon  which  the  conflicting  claims  were  based. 
The  present  technical  bulletins  issued  by  the  separate  depart- 
ments of  the  administration  do  not  meet  the  need. 


CHAPTER  VII 

EMERGENCY   LEGISLATION   ADOPTED   BY 
CONGRESS 

Legislation  in  aid  of  the  mobilization  of  the  national  re- 
sources. The  Selective  Service  Act.  Coming  down  to  de- 
tails of  the  actual  powers  assumed  by  Congress  under  its  con- 
stitutional authority  to  "raise  and  support  armies,"  we  may 
consider  first  the  legislation  passed  with  the  object  of  mobiliz- 
ing all  the  resources  of  the  country  for  the  prosecution  of  the 
war,  and  secondly  the  legislation  passed  with  the  object  of  pre- 
venting interference  with  the  conduct  of  the  war.^  First  in 
importance  among  the  laws  providing  for  the  mobilization  of 
the  national  resources  was  the  Selective  Service  Act,  approved 
May  i8,  1917,  entitled,  "  An  Act  to  authorize  the  President 
to  increase  temporarily  the  Military  Establishment  of  the 
United  States."  The  circumstances  attending  the  passage  of 
the  act  are  an  illuminating  commentary  upon  the  theory  of  the 
separation  of  the  powers  of  government.^  On  April  5th  the 
Secretary  of  War  laid  before  Congress  a  bill  prepared  by  the 
General  Staff  and  approved  by  the  President,  providing  that 
the  regular  army  and  the  national  guard  should  be  brought  to 
full  war  strength,  and  that  500,000  men  (with  an  additional 
500,000  when  it  should  be  found  necessary)  should  be  raised 
by  a  selective  draft.  It  so  happened,  however,  that  the  Demo- 
cratic chairman  of  the  Committee  on  Military  Affairs  in  the 
House  of  Representatives  was  opposed  to  the  principle  of  the 
draft,  so  that  the  ranking  Republican  member,  a  German  by 
birth,  had  to  be  called  upon  to  steer  the  bill  through  the  House. 
At  the  same  time  both  the  Speaker  of  the  House  and  the 
Democratic  floor  leader,  who  was  chairman  of  the  Committee 

1  See  above,  p.  21. 

140 


EMERGENCY  LEGISLATION  141 

on  Ways  and  Means,  attacked  the  bill,  the  former  declaring 
that  "  conscript  "  and  "  convict  "  were  synonymous  in  the  mind 
of  the  people.  In  spite  of  these  obstacles  the  bill  finally  passed 
by  large  majorities  in  the  Senate  and  in  the  House,  and  after 
three  weeks'  delay  necessary  to  secure  an  agreement  between 
the  two  houses  on  matters  of  detail,  was  sent  to  the  President 
in  a  form  not  dififering  greatly,  except  in  the  age  limits  of 
liability  to  service,  from  the  original  bill  presented  to  Con- 
gress.^ 

Verdict  of  the  Supreme  Court  upon  its  constitutionality. 
Doubts  as  to  the  constitutionality  of  the  act  had  been  expressed 
by  its  opponents  during  the  debates  in  Congress  preceding  its 
adoption ;  and  following  its  enactment  formal  suit  was  brought 
in  the  federal  courts  to  have  it  declared  unconstitutional.  A 
number  of  separate  suits  were  consolidated,  and  by  being  ad- 
vanced on  the  court  dockets  they  reached  the  Supreme  Court 
of  the  United  States  at  the  opening  of  the  October  term  in 
1917.2  The  chief  objections  raised  against  the  act  were  that 
the  Constitution  did  not  authorize  raising  armies  by  com- 
pulsory draft,  that  there  was  no  constitutional  authority  for 
sending  citizens,  especially  the  militia,  to  serve  on  foreign  soil, 
and  that  enforced  military  service  constituted  the  involuntary 
servitude  forbidden  by  the  13th  Amendment.  In  answer  the 
court  stated  that  the  denial  that  the  power  to  raise  armies  in- 
cluded the  power  to  exact  enforced  military  duty  "  challenges 
the  existence  of  all  power,  for  a  governmental  power  which  has 
no  sanction  to  it  and  which  therefore  can  only  be  exercised 
provided  the  citizen  consents  to  its  exertion  is  in  no  substantial 
sense  a  power."  "  It  may  not  be  doubted,"  said  the  court, 
"that  the  very  conception  of  a  just  government  and  its  duty 
to  the  citizen  includes  the  reciprocal  obligation  of  the  citizen 
to  render  military  service  in  case  of  need  and  the  right  to  com- 

1  The  act  was  subsequently  amended  so  as  to  include  persons  be- 
tween the  ages  of  31  and  45,  but  in  other  respects  remained  un' 
changed. 

2  Arver  v.  U.  S.,  245  U.  S.,  366. 


142      POLITICAL  SYSTEMS  IN  TRANSITION 

pel  it."  The  second  objection  was  considered  at  length,  and 
the  court  made  a  careful  distinction  between  the  armies  which 
Congress  might  raise  and  the  militia  whose  duties  appeared  to 
be  limited  to  defense  against  foreign  invasion.  Once  the 
militia  were  called  into  national  service  any  limitations  upon 
their  use  disappeared.  Moreover,  the  14th  Amendment 
"broadened  the  national  scope  of  the  Government  under  the 
Constitution  by  causing  citizenship  of  the  United  States  to  be 
paramount  and  dominant  instead  of  being  subordinate  and  de- 
rivative, and  therefore  operating  as  it  does  upon  all  the  powers 
conferred  by  the  Constitution,  leaves  no  possible  support  for 
the  contention  made."  The  objection  relating  to  involuntary 
servitude  was  dismissed  as  being  "  refuted  by  its  mere  state- 
ment." In  like  manner  the  argument  that  the  exemption  from 
military  service  in  the  strict  sense  of  members  of  religious 
sects  whose  tenets  excluded  the  moral  right  to  engage  in  war 
amounted  to  ''  an  establishment  of  religion,"  as  prohibited  by 
the  Constitution,  was  dismissed  as  unworthy  of  notice. 

Comparison  with  the  Draft  Act  of  1863.  It  is  instructive 
to  compare  the  Selective  Service  Act  with  the  provisions  of 
the  draft  law  passed  by  Congress  during  the  Civil  War.  The 
act  of  March  3,  1863,  contained  a  clause  permitting  persons 
drafted  to  furnish  a  substitute  or  to  obtain  exemption  on  pay- 
ment of  $300.  The  constitutionality  of  the  act  was  never 
passed  upon  by  the  Supreme  Court  of  the  United  States,  nor 
by  any  state  court  except  that  of  Pennsylvania,  which  upheld 
the  law.  But  it  is  more  than  probable  that  had  a  similar  law 
been  passed  in  19 17  the  features  above  mentioned  would  have 
been  sufficient  to  warrant  the  court  in  declaring  it  unconstitu- 
tional. For  the  two  exemptions  in  favor  of  those  able  to  raise 
the  required  sum  of  money  would  appear  to  be  in  clear  viola- 
tion of  the  5th  Amendment  of  the  Constitution,  which  requires 
that  no  person  shall  be  ''  deprived  of  life,  liberty,  or  property, 
without  due  process  of  law,"  the  phrase  "  due  process  of  law  " 
being  now  interpreted  as  including  not  only  the  customary 
forms  of  judicial  procedure,  but  also  certain  substantive  prim- 


EMERGENCY  LEGISLATION  143 

ciples  of  justice,  such  as  equality  before  the  law;  so  that  any 
legislative  act  of  a  clearly  arbitrary  and  oppressive  character 
would  be  declared  unconstitutional  by  the  court,  as  being  of 
the  same  practical  effect  as  an  arbitrary  and  oppressive  deci- 
sion of  the  courts  themselves.  The  scandals  which  attended 
the  operation  of  the  draft  law  of  1863  are  one  of  the  dark  pages 
of  the  records  of  the  Civil  War.  "  Bounty-jumpers  "  in  large 
numbers  failed  to  enlist  after  they  had  received  a  bounty  to 
do  so,  and  "  substitute  brokers  "  handled  on  a  commission  basis 
the  business  of  providing  substitutes  at  fixed  rates.  Accusa- 
tions of  dishonesty  were  frequently  made  against  officers  and 
physicians  who  were  in  charge  of  the  enlistments.  In  some 
instances,  as  in  the  case  of  the  Democratic  enrollment  dis- 
tricts of  the  East-side  of  New  York,  the  allotments  were  in 
excess  of  due  quotas,  while  the  law  fell  heavily  upon  the  for- 
eign-born population  of  the  cities,  who  were  unable  to  fur- 
nish substitutes  or  to  purchase  exemption.  By  contrast,  the 
Selective  Service  Act  was  not  only  rigid  in  its  provisions  for 
equality  of  treatment  of  all  ranks  of  society  by  prohibiting  the 
payment  of  bounties  or  the  furnishing  of  substitutes,  but  its 
operation  was  attended  with  an  insignificant  number  of  charges 
of  dishonesty  on  the  part  of  the  draft  boards  which  passed  upon 
the  qualifications  of  the  persons  selected.  Priority  of  selection 
from  among  the  entire  number  of  persons  drafted  was  decided 
by  lot.^ 

Legislation  for  the  protection  of  men  in  the  military  serv- 
ice. Having  provided  for  the  raising  of  an  army  adequate  to 
the  nation's  needs,  Congress  at  the  same  time  undertook  in  a 
variety  of  ways  to  provide  for  the  welfare  of  the  enlisted  men. 
Section  12  of  the  Selective  Service  Act  authorized  the  Presi- 
dent to  make  regulations  governing  ''  the  prohibition  of  alcho- 
holic  liquors  in  or  near  military  camps  and  to  the  officers  and 
enlisted  men  of  the  Army,"  and  it  was  made  unlawful  to  sell 
any  intoxicating  liquor  to  any  officer  or  member  of  the  mili- 

1  The  administration  of  the  act  by  means  of  local  and  district  boards 
is  discussed  in  a  subsequent  chapter.    Below,  p.  211-213. 


144       POLITICAL  SYSTEMS  IN  TRANSITION 

tary  forces  while  in  uniform.  In  pursuance  of  the  authority 
conferred  upon  the  President  the  Secretary  of  War  estabHshed 
"  a  zone  five  miles  wide "  within  which  alchohoHc  liquors 
might  not  be  sold  or  given  by  one  person  to  another,  cities  and 
towns  within  that  area  being  partially  exempted.  Section  13  of 
the  same  act  authorized  the  Secretary  of  War  "  to  do  every- 
thing by  him  deemed  necessary "  to  suppress  houses  of  ill- 
fame  within  such  distance  as  he  might  deem  needful  of  any 
military  camp  or  place  of  mobilization;  and  it  was  made  a 
criminal  offense  to  receive  any  such  person  into  any  such  house 
for  immoral  purposes  or  to  permit  such  person  to  remain  there. 
A  subsequent  and  more  stringent  amendment  to  Section  13 
went  into  further  details  and  made  the  act  itself  of  engaging 
in  prostitution  a  criminal  offense.  Section  13  of  the  Selec- 
tive Service  Act  was  attacked  as  unconstitutional  on  the  ground 
that  it  invaded  the  reserved  rights  of  the  States  to  provide  for 
the  health  and  morals  of  the  community,  and  constituted  an 
attempt  on  the  part  of  Congress  to  exercise  a  "  police  power  " 
not  granted  to  it  by  the  Consitution.  But  the  court  replied  that 
the  restrictions  imposed  by  Congress  were  not  imposed  in  the 
exercise  of  police  power,  but  in  the  exercise  of  the  war  powers 
of  Congress.  The  power  to  raise  and  support  an  army  carries 
with  it  by  implication  the  power  to  protect  the  morals  of  the  sol- 
diers composing  the  army.  Moreover,  the  Secretary  of  War,  in 
publishing  the  regulations,  was  not  exercising  legislative  power, 
but  merely  giving  effect  to  a  law  already  complete  when  it  left 
the  hands  of  Congress.^  The  decision  is  of  importance  both  as 
showing  the  extent  to  which  the  powers  of  local  self-govern- 
ment reserved  to  the  States  by  the  Constitution  had  to  yield  to 
the  right  of  Congress  to  protect  the  national  forces,  and  as  justi- 
fying the  transfer  of  the  penalties  normally  attending  a  viola- 
tion of  the  terms  of  the  law  itself  to  a  violation  of  the  admin- 

1  United  States  v.  Casey,  247  Federal  Reporter,  362.  The  same  rul- 
ing was  later  made  by  the  Supreme  Court  in  the  case  of  McKinley  v. 
United  States,  decided  April  14.  1919. 


EMERGENCY  LEGISLATION  145 

istrative  regulations  applying  the  law  at  the  discretion  of  the 
Executive. 

Scope  of  the  Civil  Relief  Act.  In  addition  to  legislation 
to  protect  the  health  and  morals  of  the  army,  Congress  passed 
after  considerable  delay  the  Soldiers'  and  Sailors'  Civil  Relief 
Act  of  March  8,  191 8,  the  object  of  which  was  to  prevent 
prejudice  or  injury  to  the  civil  rights  of  persons  in  the  mili- 
tary service  of  the  United  States.  The  law  provided  that  be- 
fore a  judgment  by  default  might  be  obtained  the  plaintiff 
should  file  in  the  court  an  affidavit  showing  that  the  defendant 
was  not  in  military  service.  Where  the  defendant  was  in  the 
military  service  the  court  was  to  appoint  an  attorney  to  rep- 
resent the  defendant  and  protect  his  interest,  and  might  re- 
quire as  a  condition  before  judgment  was  entered  that  the 
plaintiff  file  a  bond  to  indemnify  the  defendant  against  any 
loss  he  might  suffer  should  the  judgment  be  later  set  aside. 
Provision  was  also  made  that  no  eviction  or  distress  should 
take  place  in  respect  to  premises  rented  for  dwelling  purposes 
by  the  wife,  children,  or  other  dependents  of  a  person  in  military 
service,  where  the  rent  of  the  house  did  not  exceed  $50  per 
month.  Installment  contracts  were  protected  by  requiring  that 
where  a  person  in  military  service  failed  to  meet  his  successive 
obligations  the  right  to  rescind  should  not  be  exercised  except 
after  action  in  a  court  of  competent  jurisdiction.  In  like  man- 
ner mortgages  were  protected  against  foreclosure  except  with 
the  express  approval  of  the  court,  and  insurance  policies  were 
carried  by  the  Government  for  the  insured  by  the  deposit  of 
government  bonds  with  the  insurer  to  be  held  as  security  for 
the  payment  of  defaulted  premiums  with  interest  after  the 
discharge  of  the  person  from  military  service.  The  provisions 
of  laws  fixing  the  conditions  of  residence,  improvements  and 
assessments,  in  establishing  claims  to  mining,  homestead,  and 
desert  land  entries  on  government  lands  were  suspended  dur- 
ing the  war  in  favor  of  persons  in  military  service.  I  Many  of 
these  provisions  were  a  serious  encroachment  upon  tlie  powers 


146       POLITICAL  SYSTEMS  IN  TRANSITION 

of  the  separate  States  to  regulate  the  legal  relations  of  their 
citizens,  and  they  would,  of  course,  in  normal  times  have  been 
entirely  beyond  the  jurisdiction  of  the  Federal  Government. 
Their  constitutional  justification  lay  in  the  elastic  interpretation 
given  to  the  brief  clause,  '*  to  raise  and  support  armies." 

The  War  Risk  Insurance  Act.  The  important  act  by  which 
Congress  made  provision  both  for  the  welfare  of  the  families 
of  men  in  military  service,  and  for  their  own  support  in 
case  of  disabling  wounds,  did  not  involve  the  assumption  of 
any  new  powers  by  Congress,  and  might  therefore  be  excluded 
on  that  ground  from  our  present  consideration ;  but  it  marked 
such  a  radical  departure  from  the  policies  pursued  during  and 
after  the  Civil  War  and  must  prove  in  time  to  have  prevented 
such  serious  political  abusers,  that  it  may  be  briefly  referred  to 
in  that  connection.  If  the  "  bounty  "  system,  by  which  the 
several  States  made  it  possible  during  the  Civil  War  for  men 
to  enlist  who  had  families  dependent  upon  them,  was  both  hap- 
hazard in  its  operation  and,  as  we  have  seen,  attended  by 
numerous  abuses,  the  pension  system  by  which  the  Federal 
Government  undertook  to  make  provision  after  the  war  for 
the  wounded  and  for  the  families  of  those  who  had  been  killed 
was  responsible  for  political  evils  of  the  most  serious  kind. 
The  worst  of  these  arose  in  connection  with  private  pension 
bills,  by  means  of  which  representatives  log-rolled  through  Con- 
gress grants  of  pensions  to  their  constituents  who  in  many 
cases  had  been  justly  refused  pensions  by  the  administration 
bureau  under  the  general  law.  An  indication  of  the  extent 
of  the  evil  may  be  gathered  from  the  fact  that  President  Cleve- 
land felt  called  upon  to  veto  as  many  as  233  such  private 
bills.  It  is  well  known  that  the  pension  list  as  it  stands  to- 
day includes  many  persons  who  suffered  no  physical  impair- 
ment in  consequence  of  their  period  of  service  and  who  are  in 
no  need  of  financial  help  from  the  Government. 

Provisions  for  allotments,  allowances,  and  compensation. 
Conscious  of  the  abuses  attending  the  existing  pension  sys- 
tem, and  realizing  that  the  magnitude  of  the  new  armies  about 


EMERGENCY  LEGISLATION  147 

to  be  raised  and  the  democratic  basis  upon  which  they  were 
being  recruited  called  for  a  more  logical  and  at  the  same  time 
a  more  equitable  plan  of  relief,  Congress  enacted  a  compre- 
hensive law  including  both  maintenance  for  the  families  of  the 
men  in  service  and  provision  for  the  men  themselves  if  wounded, 
or  for  their  families  in  the  event  of  their  death.  The  War 
Risk  Insurance  Act  of  October  6,  191 7,  in  the  form  of  an 
amendment  to  earlier  acts  covering  marine  insurance,  is  in 
reality  one  of  the  most  striking  developments  of  social  legis- 
lation produced  by  the  war.  In  the  first  place  the  law  recog- 
nized the  obligation  of  the  enlisted  man  to  contribute  in  fair 
measure  to  the  support  of  his  wife  and  children,  and  insisted 
that  he  was  not  to  be  allowed  to  evade  the  obligation  merely 
because  he  was  in  military  service.  The  Government,  there- 
fore, withheld  a  certain  portion  of  the  pay  of  the  enlisted  man 
under  the  form  of  a  "  compulsory  allotment "  to  wife  and 
children,  and  it  then  met  this  allotment  by  a  corresponding 
*'  allowance  "  varying  in  amount  according  to  the  number  of 
children.  In  the  case  of  dependents  other  than  wife  and 
children  the  man  had  to  prove  that  he  had  contributed  to  theif 
support  before  he  entered  the  service,  and  had  to  be  ready  to 
make  a  "  voluntary  allotment  "  before  the  Government  was  will- 
ing to  make  the  fixed  "  allowance  "  for  such  cases.^  In  the 
second  place  the  law  made  automatic  "  compensation  "  in  case 
of  death  or  disability  resulting  from  injury  suffered  or  disease 
contracted  in  the  line  of  duty.  This  part  of  the  law  takes 
the  place  of  the  old  pension  system,  but  with  the  marked  im- 
provement that  the  compensation  is  determined  in  advance  and 
there  is  no  room  for  special  pension  legislation,  except  possibly 

1  The  allowance  of  the  Government  amounted  to  $15  in  the  case  of 
a  wife,  $25  in  the  case  of  a  wife  and  one  child,  and  so  on  up  to  $50; 
to  which  must  be  added  the  corresponding  compulsory  allotment  of 
$15  or  more.  The  amounts,  were,  of  course,  not  adequate  to  meet  all 
cases,  but  in  view  of  the  heavy  burden  laid  upon  the  average  tax 
payer  Congress  felt  that  a  minimum  sum  had  to  be  fixed,  and  left  it 
to  State  and  other  organized  agencies  of  relief  to  provide  for  special 
cases. 


148      POLITICAL  SYSTEMS  IN  TRANSITION 

in  the  case  of  officers  who  were  not  adequately  provided  for. 
Moreover,  the  amount  of  the  compensation  varies  in  accordance 
with  the  size  of  the  man's  family,  and  is  automatically  in- 
creased in  the  case  of  a  disabled  man  who  marries  and  has 
children,  thus  making  it  unnecessary  for  him  to  appeal  to 
Congress  for  special  aid<. 

Insurance  features  of  the  law.  But  the  most  novel  feature 
of  the  law,  and  the  one  of  most  constructive  importance  for 
the  future,  is  that  which  enabled  the  enlisted  man  to  insure 
himself  against  death  or  permanent  disability,  and  thus  ob- 
tain an  additional  income  for  his  family  over  and  above  the 
fixed  compensation  granted  by  the  Government.'  The  idea  un- 
derlying the  provision  for  insurance  was  that  Congress  recog- 
nized the  disadvantage  in  which  the  enlisted  man  was  placed 
should  he  desire  to  obtain  insurance  from  one  of  the  standard 
companies,  whose  rates  for  men  in  the  army  were  practically 
prohibitive.  Insurance  was  therefore  furnished  by  the  War 
Risk  Bureau  at  cost,  disregarding  the  extra-hazardous  risks  and 
making  no  charge  for  the  expenses  of  administration  or  for 
profits.  Provision  was  also  made  that  after  the  war  the  in- 
sured might  convert  his  war  policy  into  one  or  other  of  the 
ordinary  forms  of  life  insurance,  with  the  Government  continu- 
ing in  the  position  of  insurer.  We  thus  find  the  Government, 
now  that  the  war  is  over,  ready  to  exercise  a  standing  busi- 
ness relationship  with  as  many  of  the  four  millions  of  men  as 
choose  to  avail  themselves  of  the  opportunity  of  obtaining  per- 
manent life  insurance  without  medical  examination  and  at 
lower  cost  than  such  insurance  could  be  obtained  elsewhere. 
The  results  of  the  experiment  will  be  watched  with  much  con- 
cern by  all  those  interested  in  the  various  forms  of  social  in- 
surance by  which  it  is  proposed  that  the  Government  shall  offer 
protection  against  sickness,  accident,  old  age,  and  unemploy- 
ment. Whether  in  this  extension  of  government  functions 
the  Federal  Government  shall  encroach  further  upon  the  sepa- 
rate state  governments  is  a  question  yet  to  be  determined ;  but 
as  things  stand  at  present  in  respect  to  the  legislative  fields  as- 


EMERGENCY  LEGISLATION  149 

signed  to  the  central  and  the  local  governments,  the  Federal 
Government  must  limit  its  activities  to  the  extension  of  in- 
surance to  the  civilian  employees  of  the  Government,  leaving 
it  to  the  state  governments  to  further  the  progress  of  social 
insurance  for  the  public  at  large.  Social  insurance  will  un- 
doubtedly form  one  of  the  important  problems  of  construc- 
tive legislation  in  the  future,  and  there  is  no  doubt  but  that  a 
great  impulse  has  been  given  to  it  by  the  action  of  Congress 
in  passing  the  War  Risk  Act.  Whether  it  is  wise  in  normal 
peace  times  to  confer  upon  the  Government  such  extensive 
functions  is,  however,  a  doubtful  question  in  the  minds  of  many 
publicists.^ 

Mobilization  of  material  resources.  Second  only  in  impor- 
tance to  the  problem  of  raising  the  new  armies  provided  for  by 
the  Selective  Service  Act  was  the  problem  of  stimulating  the 
production  of  munitions,  food,  and  fuel ;  of  directing  the  trans- 
portation system  of  the  country  so  as  to  facilitate  the  produc- 
tion and  proper  distribution  of  commodities ;  and  of  regulating 
the  consumption  of  raw  materials  so  as  to  conserve  those  needed 
to  meet  the  special  demands  of  the  army  and  of  war  industries. 
In  each  of  these  three  fields  Congress  assumed  new  powers 
denied  to  it  by  the  Constitution  in  normal  times  of  peace  but 
implied  in  time  of  war  in  the  power  "  to  raise  and  support 
armies."/  A  thorough  study  of  all  the  legislation  adopted  by 
Congress  and  of  the  administrative  agencies  created  by  the 
Executive  to  regulate  production,  distribution,  and  consumption 
in  the  interest  of  strengthening  the  fighting  arm  of  the  nation 

^The  hope  that  so  comprehensive  and  constructive  a  measure  as 
the  War  Risk  Insurance  Act  would  remove  the  question  of  remunera- 
tion for  services  in  war  from  the  arena  of  partisan  politics  has  already 
been  defeated  in  the  passage  by  the  House  of  Representatives  of  a 
*'  bonus  bill,"  the  obvious  purpose  of  which,  in  the  form  in  which  it 
was  first  introduced,  was  to  win  votes  in  the  coming  election.  In  the 
face  of  public  criticism  and  of  the  inability  of  Congress  to  find  a  way 
of  raising  the  large  sums  necessary  to  provide  the  "  bonus,"  the  bill 
failed  of  passage  by  the  Senate  before  the  adjournment  of  Congress 
on  June  5,  1920. 


150       POLITICAL  SYSTEMS  IN  TRANSITION 

would  lead  us  into  a  general  history  of  all  the  activities  of  the 
war.  Our  interest  here  is  chiefly  in  those  special  laws  and 
their  administration  which  mark  the  extension  of  the  control 
of  the  Federal  Government  over  the  life  of  the  country  and 
contain  in  themselves  the  seeds  of  a  new  development  of  the 
functions  of  government  in  time  of  peace.  We  entered  the 
war  with  a  Federal  Government  of  limited  powers ;  we  fought 
the  war  with  a  Federal  Government  of  almost  unlimited 
powers ;  now  that  the  war  is  over  shall  these  new  functions  of 
the  Federal  Government  be  entirely  abandoned  as  belonging 
only  to  the  urgency  of  war,  or  shall  they  be  continued  in 
modified  form  in  so  far  as  the  Constitution  permits,  and  the 
Constitution  amended  where  necessary? 

The  production  of  munitions.  The  problem  of  mobilizing 
the  industrial  resources  of  the  country  so  as  to  stimulate  the 
production  of  munitions  of  war  had  been  partly  met  before  jthe 
declaration  of  war  in  the  creation  by  Congress  in  1916  of  the 
Council  of  National  Defense.  Among  the  sub-committees  ap- 
pointed by  the  Council  were  the  Munitions  Standards  Board, 
whose  duty  it  was  to  cooperate  with  the  War  and  Navy  De- 
partments in  determining  and  adopting  standards  for  the  manu- 
facture of  munitions  of  war,  and  the  General  Munitions  Board, 
whose  duty  it  was  to  coordinate  the  buying  of  munitions  by  the 
Army  and  Navy  Departments  and  to  assist  in  obtaining  the 
raw  materials  and  the  manufacturing  facilities  necessary  for  the 
production  of  munitions.  These  two  committees  and  other 
lesser  ones  were  subsequently  merged  into  a  new  War  Indus- 
tries Board,  which  acted  as  a  centralizing  agency  for  the  satis- 
faction of  the  demands  of  the  several  branches  of  the  War 
Department,  and  undertook  to  reorganize  the  industrial  re- 
sources of  the  country  so  as  to  insure  that  the  requirements  of 
the  Government  would  be  met  as  speedily  as  possible.  Acting 
in  pursuance  of  general  powers  conferred  upon  the  President 
by  the  National  Defense  Act  of  June  3,  1916,  the  committee 
assumed  several  quasi-legislative  functions,  among  them  being 
the  determination  of  priorities  in  respect  to  the  production,  de- 


EMERGENCY  LEGISLATION  151 

livery,  and  use  of  materials  and  supplies,  the  fixing  of  prices 
where  it  was  found  necessary,  and  the  requiring  that  wasteful 
methods  of  production  should  be  eliminated  in  favor  of  more 
scientific  and  economical  plans  prescribed  by  the  committee.^ 

Control  over  shipbuilding.  The  building  of  ships,  like  the 
production  of  munitions,  was  considerably  facilitated  by  action 
taken  prior  to  the  war.  On  September  7,  191 6,  Congress 
passed  the  Shipping  Board  Act,  the  principal  object  of  which 
was  to  encourage,  develop,  and  create  a  naval  auxiliary  and  a 
merchant  marine  to  meet  the  requirements  of  the  commerce  of 
the  United  States.  The  Board  was  given  powers  approximat- 
ing those  exercised  by  the  Interstate  Commerce  Commission  and 
the  Federal  Trade  Commission  over  inland  transportation,  and 
it  was  further  empowered  to  have  vessels  constructed  in  Ameri- 
can shipyards  and  elsewhere,  and  to  purchase,  lease  and  charter 
vessels  suitable,  in  so  far  as  commercial  requirements  might 
permit,  for  use  as  naval  auxiliaries  in  time  of  war.  On  the 
outbreak  of  the  war  the  Board  organized,  under  the  laws  of 
the  District  of  Columbia,  a  private  corporation  with  a  capital 
stock  of  $5o,cxx),ooo,  under  the  name  of  the  United  States 
Shipping  Board  Emergency  Fleet  Corporation,  the  stock  of 
which  was  subscribed  for  by  the  Board,  and  to  which  the 
Board  delegated  its  powers  in  respect  to  the  acquisition  and 
operation  of  vessels.  A  subsequent  act  of  June  15,  1917,  au- 
thorized the  President  not  only  to  take  over  any  ships  under 
construction,  but  also  "  to  require  the  owner  or  occupier  of  any 
plant  in  which  ships  are  built  or  produced  to  place  at  the  dis- 

^An  excellent  description  of  the  work  of  the  War  Industries  Board 
may  be  found  in  an  article  on  "  War  Organization,"  by  W.  F.  Wil- 
loughby,  in  the  "  American  Year  Book  for  1918,"  and  a  fuller  treat- 
ment in  the  same  writer's  "  Government  Organization  in  War  Time 
and  After,"  which  has  been  freely  drawn  upon  in  these  paragraphs. 

Mention  should  also  be  made,  in  connection  with  the  production  of 
munitions,  of  the  activities  of  the  War  Finance  Corporation,  created 
by  act  of  April  5,  1918,  the  purpose  of  which  was  to  advance  funds  to 
essential  industries  which  might  be  unable  to  secure  the  money  needed 
at  reasonable  rates. 


152      POLITICAL  SYSTEMS  IN  TRANSITION 

posal  of  the  United  States  the  whole  or  any  part  of  the  output 
of  such  plant,"  and  *'  to  requisition  and  take  over  for  use  or 
operation  by  the  United  States  any  plant,  or  any  part  thereof, 
without  taking  possession  of  the  entire  plant."  The  entire 
shipbuilding  resources  of  the  country  were  thus  brought  under 
the  practical  control  of  the  Government.  By  a  still  later  act 
of  July  i8,  1918,  the  President  was  authorized  to  operate  the 
ships  and  shipping  agencies  almost  as  completely  as  the  rail- 
roads and  the  telegraph  and  telephone  systems  were  operated 
under  direct  government  control.  Ships  already  in  service  were 
requisitioned  and  in  many  cases  operated  by  their  owners  under 
charter  from  the  Emergency  Fleet  Corporation ;  while  in  other 
cases  the  ships  were  operated  by  the  Corporation  itself  through 
a  special  operating  department,  and  free  training  and  engineer- 
ing schools  were  established  to  recruit  merchant  marine  of- 
ficers. 

Control  over  food  products  and  fuel  supplies.  If  the  con- 
trol exercised  by  the  various  administrative  boards  over  the 
production  of  munitions  and  the  building  of  ships  brought  a 
large  part  of  the  industrial  life  of  the  country  into  direct  rela- 
tions with  the  central  government,  the  extension  of  the  powers 
of  Congress  and  of  the  President  over  the  food  and  fuel  sup- 
plies of  the  country  brought  each  and  every  citizen  into  close 
touch  with  the  federal  agencies  established  to  regulate  the  pro- 
duction and  distribution  of  those  commodities.  The  problem 
of  the  food  supply  was  one  which  bore  upon  the  Government 
chiefly  in  the  interest  of  meeting  the  needs  of  our  Allies ;  but  it 
had  direct  reactions  upon  our  own  people  at  large  in  conse- 
quence of  the  fact  that  the  excessive  demand  from  abroad 
tended  to  enhance  prices  and  to  increase  opportunities  for 
profiteering  by  unscrupulous  dealers.  To  meet  the  problem 
Congress  passed  the  Food  Production  or  "  Food  Survey  "  Act, 
approved  August  10,  1917,  which  enlarged  the  powers  of  the 
Department  of  Agriculture  in  the  interest  of  increasing  food 
production  through  the  distribution  of  seeds,  and  of  eliminat- 
ing waste  through  the  prevention   and  eradication  of   plant 


EMERGENCY  LEGISLATION  153 

and  live  stock  diseases.  On  the  same  day  the  Food  and  Fuel 
Control  Act  was  approved,  which  provided  for  the  establishment 
of  a  rigid  governmental  control  over  the  production  and  dis- 
tribution of  foods,  fuels,  fertilizers,  and  tools  and  machinery 
required  for  the  production  of  foods  and  fuels.  At  the  same 
time  it  imposed  penalties  upon  all  who  should  attempt  to  hoard 
any  of  the  above  "  necessaries,"  or  to  restrict  the  supply  and 
distribution  of  them.  The  President  was  authorized  to  fix 
the  price  of  wheat,  the  object  being  to  insure  on  the  one  hand 
that  farmers  should  not  fear  that  an  unusually  large  crop  would 
result  in  low  prices  and  on  the  other  hand  that  the  unusual  de- 
mand should  not  unduly  raise  the  price.  The  political  im- 
plications of  this  attempt  to  regulate  the  marketing  of  this 
vital  element  among  the  necessaries  of  life  were  interesting  as 
showing  the  pressure  brought  to  bear  by  the  agricultural  repre- 
sentation in  Congress  to  have  the  price  fixed  when  it  was 
thought  that  such  action  was  needed  for  the  farmer's  protec- 
tion, and  the  opposition  to  price  fixing  by  the  same  group  on  a 
later  occasion  when  it  appeared  that  the  price  would  advance 
beyond  that  determined  upon  by  the  Government. 

Prohibition  legislation  under  guise  of  food  conservation. 
A  further  political  feature  of  the  act  was  the  presence  of  a 
rider  prohibiting  the  use  of  foods,  fruits,  or  food  materials 
in  the  production  of  distilled  spirits  for  beverage  purposes. 
The  prohibition  was  absolute  and  allowed  the  President  no 
discretion  as  to  whether  there  was  need  for  such  a  restriction. 
At  the  same  time  an  entirely  irrelevant  provision  was  intro- 
duced forbidding  the  importation  into  the  United  States  of 
any  distilled  liquors.  In  the  case  of  food  materials  used  in  the 
production  of  beers  and  wines,  the  President  was  authorized 
to  apply  restrictions  according  to  the  need  for  conservation. 
The  authority  thus  granted  was  not  exercised  by  the  President, 
since  it  did  not  appear  to  the  Food  Administrator  that  the  short- 
age of  food  was  so  great  as  to  call  for  the  restriction.  More 
drastic  legislation  against  intoxicating  liquors  was  contained  in 
a  rider  to  the  Food  Stimulation  Act  (Emergency  Agricultural 


154       POLITICAL  SYSTEMS  IN  TRANSITION 

Appropriation  Act)  of  November  21,  19 18,  which  extended  the 
prohibition  of  the  use  of  foodstuffs  to  the  production  of  beer, 
wine,  or  other  intoxicating  malt  or  vinous  liquors  after  May 
I,  1919,  and  until  the  end  of  demobilization.  At  the  same  time 
the  sale  of  such  liquors  was  prohibited  after  June  30,  1919,  until 
the  end  of  demobilization.  The  striking  feature  of  this  pro- 
hibition rider,  known  separately  as  the  War-time  Prohibition 
Act,  is  the  fact  that  it  was  passed  ten  days  after  the  armistice 
had  been  signed,  when  the  cessation  of  the  losses  due  to  sub- 
marine warfare  and  the  probability  that  relief  would  come  to 
Europe  before  the  law  would  come  into  effect  made  the  neces- 
sity of  the  legislation  as  a  food  conservation  measure  much 
less  apparent.  Moreover,  there  was  no  connection  between  the 
prohibition  of  the  sale  of  intoxicating  liquors  and  the  stimula- 
tion of  food  production,  since  the  manufacture  of  such  liquors 
had  already  been  forbidden  by  the  Food  and  Fuel  Control  Act, 
and  such  sales  as  might  take  place  could  only  be  from  stocks 
on  hand.  The  evidence  all  pointed  to  the  determination  of  the 
forces  in  Congress  favoring  prohibition  to  make  use  of  every 
opportunity  to  secure  temporary  legislation  pending  the  adop- 
tion of  the  amendment  to  the  Federal  Constitution  then  awaiting 
ratification  by  the  States.  To  have  based  the  prohibition  rider 
squarely  upon  the  need  of  conserving  the  industrial  man- 
power of  the  nation,  and  to  have  attempted  to  pass  it  as  a 
distinct  measure  to  be  judged  on  its  own  merits,  would  doubt- 
less under  the  circumstances  have  been  to  invite  defeat. 

Constitutionality  of  the  War-time  Prohibition  Act.  The 
constitutionality  of  the  War-time  Prohibition  Act  was  con- 
tested upon  several  grounds,  and  a  decision  was  handed  down 
by  the  Supreme  Court  of  the  United  States  on  November  15, 
19 1 9,  which  incidentally  discussed  a  number  of  important  ques- 
tions relating  to  the  war  powers  of  Congress.*  In  the  first 
place  the  court  disregarded  the  lack  of  connection  between  the 
prohibition  rider  and  the  conservation  of  food,  and  accepted 

1  Hamilton  v.  Kentucky  Distilleries  and  Warehouse  Company,  de- 
cided December  15,  19 19. 


EMERGENCY  LEGISLATION  155 

without  questioning  a  justification  of  the  act  based  upon  the 
general  ground  that  it  tended  to  guard  and  promote  the  effi- 
ciency of  army  and  navy  and  of  the  workers  engaged  in  the 
manufacture  of  munitions  and  supphes.  At  the  same  time  the 
principle  was  reaffirmed  that  the  court  may  not  "  pass  upon  the 
necessity  for  the  exercise  of  a  power  possessed,  since  the  pos- 
sible abuse  of  a  power  is  not  an  argument  against  its  exist- 
ence." In  the  second  place  the  court  found  no  violation  of  the 
"  due  process  of  law  "  clause  of  the  5th  Amendment  in  the 
failure  of  the  government  to  make  compensation  for  the  losses 
resulting  from  the  restrictions  imposed,  since  these  losses  were 
not  the  result  of  a  direct  appropriation  of  private  property  for 
public  purposes,  but  were  incidental  to  the  exercise  of  a  valid 
constitutional  power. 

But  the  most  important  question  raised  by  the  case  relates  to 
the  extension  of  the  war  powers  of  Congress  into  the  post-war 
period.  On  the  one  hand  it  was  contended  that  at  the  time  the 
suit  was  brought  it  was  evident  that  hostilities  would  not  be 
resumed,  that  demobilization  had  been  effected,  and  that  the 
war  emergency  was  thereby  removed,  and  the  law  was  in  con- 
sequence void.  In  proof  of  this,  statements  of  the  President 
were  adduced  to  the  effect  that  the  war  had  ended  (address  to 
Congress,  November  11,  1918)  and  peace  had  come  (Thanks- 
giving Proclamation,  November  18,  1918) ;  and  it  was  shown 
that  many  war-time  activities  had  been  suspended,  and  that 
trade  with  Germany  had  been  resumed.  But  as  against  these 
allegations  the  court  pointed  out  that  Congress  had  on  October 
28,  1919,  made  further  provision  for  the  administration  of  the 
very  law  in  question,  and  had  thus  treated  the  war  as  continu- 
ing and  demobilization  as  incomplete.  Moreover,  the  Senate 
had  but  recently  refused  to  ratify  the  treaty  of  peace  with 
Germany,  the  provisions  of  the  Lever  Act  were  still  being 
enforced  in  respect  to  the  control  of  the  fuel  supply,  the  rail- 
roads were  still  being  operated  by  the  President,  and  modi- 
fied control  over  food  supplies  was  still  in  effect.  In  con- 
clusion, the  court,  while  "assuming  that  the  implied  power 


156      POLITICAL  SYSTEMS  IN  TRANSITION 

to  enact  such  a  prohibition  must  depend  not  upon  the  existence 
of  a  technical  state  of  war,  terminable  only  with  the  ratifi- 
cation of  a  treaty  of  peace  or  a  proclamation  of  peace,  but  upon 
some  actual  emergency  or  necessity  arising  out  of  the  war  or 
incident  to  it,"  nevertheless  refused  to  consider  that  the  power 
based  upon  this  emergency  was  limited  to  the  period  of  actual 
fighting.  "  It  carries  with  it,"  said  the  court,  quoting  from  a 
Civil  War  case,  "  inherently  the  power  to  guard  against  the 
renewal  of  the  conflict  and  to  remedy  the  evils  which  have 
arisen  from  its  rise  and  progress." 

Constitutionality  of  the  Volstead  Act.  The  final  stage  in 
the  enactment  of  prohibition  legislation  in  pursuance  of  the  war 
powers  of  Congress  was  reached  in  the  Volstead  or  National 
Prohibition  Act,  which  was  passed  over  the  President's  veto, 
on  October  28,  1919.  This  measure,  besides  making  provision 
for  the  enforcement  of  the  i8th  Amendment  which  had  been 
ratified  since  the  passage  of  the  War-time  Prohibition  Act,  in- 
terpreted the  words  "  beer,  wine  or  other  intoxicating  malt  or 
vinous  liquors  "  in  the  earlier  act  as  meaning  any  such  bev- 
erages which  contained  one-half  of  one  per  centum  or  more  of 
alcohol  by  volume.  The  constitutionality  of  the  law  was  im- 
mediately contested  upon  grounds  similar  to  those  raised  in 
the  case  of  the  War-time  Prohibition  Act.  But  the  Supreme 
Court  overruled  the  objections  taken  and  upheld  the  law  on 
the  ground  that  the  implied  war  power  of  Congress  over  in- 
toxicating liquors  extended  to  the  enactment  of  a  law  which 
would  effectively  prevent  their  sale,  even  though  the  standard 
of  alcoholic  content  fixed  by  the  law  was  below  what  was 
actually  intoxicating.^ 

Activities  of  the  Food  Administration.     In  pursuance  of 

1  Ruppert  V.  Caflfey,  decided  January  5,  1920.  The  constitutionality 
of  the  Volstead  Act  as  an  exercise  of  the  power  of  Congress  to  enforce 
the  provisions  of  the  i8th  Amendment  was  upheld  in  a  later  decision, 
handed  down  on  June  7,  1920.  See  below,  p.  265.  The  difficulties 
which  the  War-time  Prohibition  Act  and  the  National  Prohibition  Act 
created  for  the  administrative  departments  of  the  several  States  will 
be  referred  to  in  the  following  chapter. 


EMERGENCY  LEGISLATION  157 

the  powers  granted  him  by  the  Food  and  Fuel  Control  Act  the 
President  appointed  a  separate  administrative  body,  known  as 
the  United  States  Food  Administration,  to  carry  out  the  provi- 
sions of  the  act.  The  activities  of  this  body  are  familiar  to  all, 
and  our  only  interest  here  is  noting  the  political  significance  of 
the  methods  followed  by  it.  As  far  as  possible  the  Food  Ad- 
ministration attempted  to  attain  its  objects  by  securing  the 
voluntary  cooperation  of  the  public  and  of  business  interests  in- 
volved. An  appeal  was  made  to  all  to  become  "  members  "  of 
the  Food  Administration,  and  thus  to  obligate  themselves  to 
follow  the  rules  laid  down  by  the  Food  Administrator  for  the 
purpose  of  conserving  supplies.  But  no  attempt  was  made, 
as  in  Great  Britain,  to  make  the  wasting  of  food  a  criminal  of- 
fense or  to  put  the  people  upon  fixed  rations.  A  degree  of 
pressure  was  subsequently  brought  to  bear  upon  the  public 
in  indirect  ways ;  and  efforts  were  made  to  prevent  profiteering 
by  a  system  of  licencing  dealers  and  penalizing  them  by  the 
withdrawal  of  their  licences  in  case  they  failed  to  observe  the 
regulations  of  the  Food  Administration.  The  Administration 
had  no  power  to  fix  prices  except  in  the  case  of  wheat,  but 
*'  fair  price  Hsts  "  were  posted  by  local  boards,  which  tended 
at  least  to  prevent  discrimination  and  excessive  over-charging.^ 
Advantages  of  voluntary  agencies.  Can  it  be  said  that 
the  voluntary  system  was  more  of  a  success  in  the  United 
States  than  in  Great  Britain  where  it  was  tried  and  in  part 
abandoned  after  it  had  proved  ineffective?  It  would  be  diffi- 
cult to  make  a  fair  comparison  under  such  dissimilar  circum- 
stances. But  while  it  can  be  said  that  surprisingly  good  results 
were  obtained  from  the  voluntary  system  in  the  United  States, 
there  is  little  doubt  but  that  much  waste  continued  in  spite 
of  it.^'  Had  there  ever  been  such  shortage  of  food  in  the 
United  States  as  in  Great  Britain  it  is  certain  that  a  ration- 

1  Further  details  of  the  activities  of  the  Food  Administration  may  be 
found  in  Lippincott,  "  Problems  of  Reconstruction,"  Chap.  II. 

2  The  requirement  that  an  equal  quantity  of  the  more  abundant 
foods  should  be  bought  for  each  pound  of  wheat  flour  and  sugar  was 
generally  admitted  to  have  led  directly  to  wastage. 


158      POLITICAL  SYSTEMS  IN  TRANSITION 

ing  system  would  have  been  demanded.  But  under  the  con- 
ditions with  which  the  United  States  was  faced,  the  vokmtary 
system  not  only  accomplished  its  purpose  but  proved  to  be  a 
most  valuable  lesson  in  community  cooperation  and  practical 
democracy.  A  people  unaccustomed  to  governmental  regula- 
tion of  their  domestic  habits  responded  to  the  appeal  with  far 
less  reluctance  than  would  probably  have  been  the  case  had 
compulsion  been  put  upon  them.  One  of  the  great  problems 
facing  democracy  in  the  future  is  the  increasing  necessity  of 
regulating  a  wide  variety  of  the  activities  of  daily  life  which 
have  hitherto  been  left  to  individual  initiative.  How  this  can 
be  accomplished  without  at  the  same  time  bringing  law  itself 
into  disrepute  by  the  very  multiplicity  of  its  provisions  and  the 
impossibility  of  securing  their  enforcement  is  a  difficulty  which 
may  prove  insuperable  unless  resort  be  had  to  methods  of 
control  similar  to  those  adopted  by  the  Food  Administration. 
Compulsory  agencies  may  prove  more  effective  in  time  of  war 
when  immediate  results  must  be  obtained  and  when  the  impera- 
tive demands  of  national  safety  make  it  necessary  to  disregard 
the  question  of  moral  gain  or  loss ;  but  as  between  compulsory 
and  voluntary  agencies  as  a  permanent  system  there  can  be 
but  little  hesitation  in  choosing  the  latter  wherever  they  offer 
a  fair  promise  that  the  minimum  needs  of  the  situation  will 
be  met. 

Activities  of  the  Fuel  Administration.  The  powers 
granted  to  the  United  States  Fuel  Administration,  created  by 
the  President  under  the  authority  of  the  Food  and  Fuel  Control 
Act,  were  similar  to  those  granted  to  the  Food  Administration. 
The  same  policy  of  combining  compulsory  orders  with  an  ap- 
peal to  voluntary  cooperation  was  likewise  resorted  to.  Ap- 
peals were  made  both  to  the  operators  and  to  the  mine  workers 
to  increase  their  output;  prices  of  coal  were  fixed  for  each 
stage  of  its  handling  from  mine  to  consumer ;  restrictions  were 
placed  upon  the  use  of  coal  for  less  necessary  purposes,  such 
as  the  illumination  of  sign-boards  and  shop-windows;  trans- 


EMERGENCY  LEGISLATION  159 

portation  was  regulated  so  as  to  avoid  unnecessary  cross-hauls ; 
and  as  a  last  emergency  all  factories  east  of  the  Mississippi 
not  engaged  in  war  work  were  closed  on  Mondays  for  a  period 
of  two  months.  Restrictions  were  likewise  placed  upon  the 
use  of  fuel  oil  and  of  gasoline,  and  the  public  was  called  upon 
to  impose  upon  itself  a  self-denying  ordinance  prohibiting  the 
use  of  automobiles  on  Sunday.  Those  who  are  inclined  to  be 
sceptical  of  the  force  of  public  opinion  to  secure  the  observance 
of  rules  to  which  no  penalty  is  attached  may  study  with  profit 
the  records  of  the  Sundays  of  the  fall  of  1917.  At  the  same 
time  it  cannot  be  denied  that  hardship  and  iiiequalitv  attached 
to  a  rule  which  permitted  the  use  of  gasoline  without  restriction 
for  purposes  of  pleasure  on  week-days  and  prohibited  even  its 
limited  use  on  Sunday  for  the  same  purpose.  In  normal  times 
it  would  be  necessary  to  frame  a  more  logical  rule.^ 

Government  operation  of  the  railways.  The  most  striking 
extension  of  the  functions  of  the  Federal  Government  during 
the  war  was  exhibited  in  connection  with  the  assumption  of 
control  over  the  railway  system.  Upon  the  outbreak  of  war 
steps  were  immediately  taken  to  place  the  entire  facilities  and 
personnel  of  the  railroads  of  the  country  at  the  disposal  of  the 
Government;  and  at  the  same  time  it  was  recognized  as  im- 
perative that  the  separate  railway  systems  would  have  to  be 
coordinated  and  operated  as  a  unit  if  the  most  effective  service 
was  to  be  obtained.!  An  attempt  was  made  at  first  to  secure 
this  unity  of  operation  through  the  action  of  the  several  com- 
panies themselves,  and  a  committee  known  as  the  "  Railroads' 
War  Board  "  was  appointed  by  the  American  Railway  Associa- 
tion to  secure  the  desired  cooperation.  The  failure  of  this 
committee  to  furnish  the  service  required  of  the  railroads  was 
not  due  to  faults  of  management  on  its  part,  but  to  the  inherent 
weakness  of  the  financial  basis  upon  which  the  separate  units 
of  the  system  had  been  built  up.  Money  was  needed  to  meet 
the  demand  for  increased  wages  and  the  more  pressing  need 

1  For  further  details,  see  Lippincott,  op.  cit.,  Chap.  III. 


i6o      POLITICAL  SYSTEMS  IN  TRANSITION 

of  maintenance  and  repair;  and  in  the  absence  of  a  response 
from  the  investment  market  it  became  necessary  for  the  Gov- 
ernment either  to  permit  sharp  advances  in  freight  rates  and 
to  make  loans  to  the  railroads  or  else  itself  to  take  over  the 
administration  of  the  railvi^ays  during  the  war.  The  latter  al- 
ternative was  adopted,  and  on  December  26,  1917,  the  President 
announced  that,  in  pursuance  of  authority  from  Congress 
granted  in  an  army  appropriation  act  of  191 6,  the  Government 
would  assume  control  of  the  railroads  of  the  country  and  of 
the  system  of  water  transportation. 

The  bargain  between  the  Government  and  the  railways. 
The  conditions  under  which  the  railways  were  to  be  operated 
by  the  Government  were  laid  down  in  the  act  of  March  21, 
1918,  entitled,  "  An  Act  to  provide  for  the  operation  of  trans- 
portation systems  while  under  Federal  control,  for  the  just 
compensation  of  their  owners,  and  for  other  purposes."  Cer- 
tain features  of  the  act  which  are  of  special  political  signifi- 
cance as  bearing  upon  the  problem  of  the  relinquishment  of 
government  control  after  the  war  may  be  briefly  mentioned. 
With  respect  to  the  protection  of  railway  investments,  the 
President  had  promised  at  the  time  of  taking  over  the  roads 
that  investors  in  railway  securities  might  rest  assured  that  their 
interests  would  be  looked  after  by  the  Government  as  scrupu- 
lously as  by  the  directors  of  the  railway  systems  themselves. 
In  fulfillment  of  this  promise  the  act  of  Congress  made  pro- 
vision that  every  line  taken  over  should  be  guaranteed  an  in- 
come equal  to  the  average  annual  operating  income  earned 
during  the  three  years  preceding  June  30,  1917.  At  the  same 
time  provision  was  made  for  maintenance,  repair,  renewals, 
and  depreciation,  with  the  object  of  enabling  the  Government  to 
return  to  each  railroad  its  property  in  "  substantially  as  good 
repair  and  in  substantially  as  complete  equipment  as  it  was  at 
the  beginning  of  federal  control."  A  Revolving  Fund  was 
created  by  a  first  appropriation  of  $500,000,000,  in  order  to 
pay  the  expenses  of  federal  control  and  at  the  same  time  to 
insure  proper  compensation  to  the  railways  and  to  make  ad- 


EMERGENCY  LEGISLATION  i6i 

vances  to  them  for  extensions,  betterments,  and  new  equip- 
ment, additional  compensation  being  allowed  to  the  railroads 
for  such  capital  expenditures  and  provision  being  made  for  re- 
imbursing the  Government  for  such  additions  and  betterments 
as  were  not  properly  chargable  to  it.^  With  respect  to  the 
period  of  federal  control,  the  act  provided  that  the  railroads 
were  to  be  returned  to  their  owners  not  later  than  twenty- 
one  months  after  the  ratification  of  the  treaty  of  peace;  but 
the  President  was  empowered  to  relinquish  control  at  any  time 
that  he  might  deem  such  action  needful  or  desirable.  Efforts 
of  the  Director  General  to  have  Congress  grant  an  extension  of 
federal  control  for  a  period  of  five  years  after  the  war,  within 
which  time  the  value  of  government  control  might  be  tested, 
were  unavailing.  In  December  1919,  the  President,  without 
waiting  for  the  time  limit  to  elapse,  announced  that  the  rail- 
roads would  be  returned  to  their  owners  on  March  i,  1920.^ 
Government  operation  of  telegraph  and  telephone  lines. 
The  assumption  by  the  Federal  Government  of  control  over 
the  telegraph,  telephone,  and  cable  systems  of  the  country  was 
due  not  to  the  need  of  obtaining  centralized  operation,  as  in  the 
case  of  the  railways,  but  to  the  necessity  of  guarding  more  care- 
fully the  secrecy  of  communications,  and  particularly  to  the 
necessity  of  anticipating  threatened  labor  -troubles  and  thus 
securing  the  uninterrupted  service  required  for  the  administra- 
tion of  war  activities.  Following  the  refusal  to  the  Western 
Union  Telegraph  Company  to  submit  to  a  decision  of  the 
National  War  Labor  Board  in  a  dispute  arising  out  of  the 
right  of  the  employees  to  organize  as  a  union,  Congress  adopted 
on  July  5,  1918,  a  resolution  authorizing  the  President  to  take 
over  the  several  systems  and  operate  them  "  during  the  continu- 
ance of  the  present  war,"  subject  to  the  same  conditions  of 

1  The  difficulties  which  these  provisions  gave  rise  to  and  the  ob- 
stacles which  they  presented  to  the  return  of  the  railroads  to  their 
owners  will  be  considered  in  a  subsequent  chapter. 

2  The  various  proposed  solutions  for  the  reorganization  of  the  rail- 
way systems  will  be  discussed  in  a  later  chapter  in  connection  with 
the  general  program  of  economic  reconstruuction. 


i62      POLITICAL  SYSTEMS  IN  TRANSITION 

law  in  force  in  regard  to  the  steam  railroads  while  under 
federal  control.  Considerable  opposition  to  the  resolution  was 
offered  by  congressmen  who  held  that  no  good  reason  had  been 
given  for  the  assumption  of  control  by  the  Government,  and 
who  suspected  that  the  desire  of  the  administration  to  take  over 
the  lines  was  due  to  an  intention  to  make  such  action  the  first 
step  towards  ultimate  government  ownership  and  operation. 
The  telegraph  and  telephone  lines  were  taken  over  by  the 
Government  on  August  i,  1918;  but  action  was  delayed  in  the 
matter  of  the  marine  cable  systems  until  a  proclamation  of 
November  2,  taking  effect  November  16,  when  the  armistice 
had  been  signed  and  the  war  was  practically  at  an  end.  The 
reason  assigned  by  the  Postmaster-General  was  the  urgent  need 
of  the  Government  to  control  the  lines  "  during  the  period 
of  readjustment."  After  an  admmistration  of  the  three  sys- 
tems by  the  Postmaster-General  which  gave  general  dissatis- 
faction both  in  regard  to  service  and  in  regard  to  the  adjust- 
ment of  labor  difficulties,  the  lines  were  returned  to  their 
owners  on  August  i,  19 19.  Many  former  advocates  of  gov- 
ernment ownership  were  frank  in  expressing  a,  change  of 
views  as  to  its  desirability  in  consequence  of  the  experience 
of  temporary  government  control. 

War  industries  and  the  problem  of  labor.  Interwoven 
with  the  problem  of  government  control  over  essential  war 
industries  and  over  the  means  of  transportation  and  communi- 
cation, and  in  some  cases  dictating  the  assumption  of  control 
by  the  Government,  was  the  question  of  mobilizing  the  labor 
forces  of  the  country.  We  have  seen  how  the  problem  of 
supplying  the  man  power  necessary  to  constitute  an  effective 
force  was  met  by  abandoning  the  system  of  voluntary  enlistment 
in  favor  of  general  conscription  within  fixed  age  limits. 
Why  was  not  the  same  compulsory  system  adopted  in  the  case 
of  the  workers  in  munition  factories  and  other  essential  in- 
dustries? Compulsion  was  applied,  where  necessary,  to  the 
owners  of  factories,  of  shipyards,  of  mines,  of  the  railways, 
telegraphs,  and  telephones,  and  other  industrial  establishments 


EMERGENCY  LEGISLATION  163 

and  agencies.  Why  should  it  not  have  been  applied  to  the-  em- 
ployees as  well,  by  constituting  them  as  it  were  an  industrial 
army  sworn  to  render  the  full  measure  of  service  required 
of  men  drafted -into  the  fighting  forces?  The  question  may 
be  debated  as  a  theoretical  proposition,  but  as  a  practical  matter 
it  was  found  more  expedient  by  the  Government  to  have  re- 
course to  voluntary  methods  of  control.  In  so  doing  it  can- 
not be  said  that  the  Government  met  with  a  full  measure  of 
success.  But  the  difficulties  encountered  were  of  a  character 
to  which  hard  and  fast  solutions  could  not  be  applied;  and 
in  many  instances  the  Government  was  but  paying  the  price 
of  the  inherent  weakness  of  a  labor  system  in  which  the 
conditions  of  living  and  the  wages  paid  were  based  not  upon 
abstract  standards  of  justice,  but  upon  the  law  of  supply  and 
demand. 

Government  agencies  for  the  settlement  of  disputes.  The 
principal  difficulty  arose  in  connection  with  disputes  between 
employers  and  employees  with  regard  to  the  scale  of  wages. 
Further  difficulties  arose  in  connection  with  living  conditions 
among  the  workers  engaged  in  mushroom  war  industries ;  and 
here  the  Government  endeavored  to  meet  the  causes  of  dis- 
content by  determining  standard  conditions  of  labor  and  seek- 
ing to  secure  their  adoption  by  the  employers,  and  in  some 
cases  by  assisting  the  employers  with  elaborate  plans  for  hous- 
ing and  other  accommodations.  At  the  outbreak  of  the  war 
the  Government  found  itself  in  the  possession  of  two  distinct 
agencies  for  the  adjustment  of  labor  difficulties.  The  New- 
lands  Act  of  1913  had  provided  a  Board  of  Mediation  and  Con- 
ciliation which  was  to  exercise  the  functions  indicated  by  its 
name  in  disputes  between  interstate  commerce  carriers  and 
their  employees.  No  binding  character  attached  to  the  awards 
of  the  Board ;  but  it  had  been  successful  in  a  large  number  of 
cases  in  the  settlement  of  labor  disputes  in  connection  with 
the  railways.  Secondly,  there  was  the  Division  of  Conciliation 
of  the  Department  of  Labor,  established  by  the  Secretary  of 
Labor  under  the  general  powers  conferred  upon  the  Depart- 


i64      POLITICAL  SYSTEMS  IN  TRANSITION 

ment  when  created  in  191 3.  This  body  also  could  only  offer  its 
services  to  the  disputants,  and  had  no  power  to  compel  a  hear- 
ing or  to  render  binding  awards.  In  addition  to  these  bodies 
the  Advisory  Committee  of  the  Council  of  National  Defense 
had  formed  a  Committee  on  Labor,  of  which  Mr.  Gompers, 
president  of  the  American  Federation  of  Labor,  was  a  member. 
After  obtaining  the  support  of  the  representatives  of  organized 
labor,  Mr.  Gompers  called  a  conference  of  employers,  labor 
leaders,  and  other  public  men,  which  was  then  organized  as  the 
full  Committee  on  Labor  of  the  Council  of  National  Defense. 
This  committee  appointed  an  executive  committee  of  eleven 
members  to  act  for  it;  and  it  was  upon  the  appeal  of  this 
executive  committee,  speaking  through  the  Council  of  National 
Defense,  that  a  *'  truce  "  was  entered  into  between  capital  and 
labor.  This  truce  marked  the  basic  relations  between  the  two 
bodies  during  the  period  of  the  war.  The  chief  conditions  of 
this  truce  were  that  "  neither  employers  nor  employees  shall 
endeavor  to  take  advantage  of  the  country's  necessities  to  change 
existing  standards,"  and  that  neither  strikes  nor  lockouts  should 
take  place  without  resort  being  first  had  to  the  established 
agencies  of  the  Federal  and  State  Governments  for  the  settle- 
ment of  disputes. 

The  President's  Mediation  Commission.  Further  steps, 
however,  were  found  necessary  to  meet  particular  emergencies. 
Radical  leaders  among  the  workers  in  a  number  of  industries 
in  the  West  took  advantage  of  the  crisis  of  the  war  to  spread 
the  doctrines  of  the  I.  W.  W.,  and  to  increase  discontent  with 
existing  political  institutions  by  contrasting  the  normal  indiffer- 
ence of  the  Government  to  the  needs  of  labor  with  the  new 
appeal  now  that  labor  was  vital  to  the  safety  of  the  country. 
To  offset  this  propaganda  the  President  appointed  a  commission, 
known  as  the  President's  Mediation  Commission,  to  investi- 
gate the  causes  of  discontent  among  the  radical  elements ;  with 
the  result  that  not  only  were  a  number  of  important  disputes 
satisfactorily  adjusted  but  steps  were  taken  to  put  the  relations 
between  labor  and  capital  on  a  new  and  more  stable  basis. 


EMERGENCY  LEGISLATION  165 

A  valuable  report  was  presented  by  the  committee,  in  which 
the  causes  of  industrial  discontent  were  analyzed  and  recom- 
mendations were  made  for  their  correction. 

The  Government  as  an  employer  of  labor.  Again,  it  was 
found  possible  for  the  Government  to  make  good  in  part  its 
inability  to  fix  by  legislation  general  standards  of  labor,  by 
imposing  such  standards  upon  contractors  engaged  in  furnish- 
ing army  clothing.  The  scope  of  this  control  over  manufac- 
tures was  not,  of  course,  either  extensive  or  permanent,  but  the 
action  taken  is  of  interest  as  showing  how  the  Government  in  its 
capacity  as  employer  may  exercise  an  indirect  control  over  a 
limited  number  of  industries,  and  may  set  standards  to  which 
other  industries  will  be  gradually  led  to  conform.  For  many 
years  there  have  been  laws  fixing  the  conditions  of  labor  in 
private  industries  furnishing  the  Government  with  supplies ; 
hours  of  labor  fixed  by  the  Government  have  been  imposed  upon 
contractors  engaged  in  work  for  the  Government ;  and  in  certain 
instances  wage  standards  have  been  imposed.  When  we  add 
to  this  the  example  which  the  Government  has  set  in  the  work- 
shops, arsenals,  and  navy  yards  under  its  direct  control,  it  will 
be  seen  that  the  influence  of  the  Federal  Government  as  an  em- 
ployer among  other  employers  has  been  of  no  little  value  in 
improving  industrial  standards.  The  same  is  true  of  many 
of  the  separate  state  governments  in  their  capacity  as  em- 
ployers of  labor ;  although  in  their  case  they  have  always  pos- 
sessed the  authority,  had  they  believed  it  proper  to  exercise 
it,  to  impose  those  standards  upon  private  manufacturers. 
'  Boards  to  adjust  disputes  and  to  determine  policies.  In 
January,  19 18,  an  effort  was  made  to  unify  the  various 
agencies  dealing  with  war  labor  by  the  creation  of  a  central 
labor  administration  with  the  Secretary  of  Labor  as  Labor 
Administrator.  An  Advisory  Council  was  then  appointed  to 
assist  the  Secretary  in  fixing  standards  and  determining  policies. 
In  addition  a  larger  War  Labor  Conference  Board  was  created, 
consisting  of  representatives  of  both  employers  and  employees. 
The  program  drawn  up  by  this  body  was  adopted  by  the  Gov- 


i66      POLITICAL  SYSTEMS  IN  TRANSITION 

eminent  and  applied  to  the  settlement  of  labor  problems  during 
the  rest  of  the  war.^  Among  other  things  the  program  recom- 
mended the  appointment  of  a  National  War  Labor  Board, 
similar  in  membership  to  the  War  Labor  Conference  Board, 
the  purpose  of  which  was  to  carry  out  the  policy  advocated 
for  the  adjustment  of  labor  disputes.  The  Board,  acting  under 
the  joint  chairmanship  of  ex-President  Taft  and  Frank  P. 
Walsh,  was  successful  in  settling  a  number  of  labor  disputes. 
Its  functions  did  not,  however,  extend  to  the  determination  of 
policies ;  and  this  need  was  later  met  by  the  creation  of  a  War 
Labor  Policies  Board,  representative  of  all  branches  of  the 
Government  service  that  were  large  employers  of  labor.  This 
body  undertook  to  determine  standard  conditions  of  employ- 
ment which  should  be  observed  both  by  government  agencies 
and  in  the  war  industries  of  the  country ;  but  before  its  elabor- 
ate program  for  the  standardization  of  wages  and  hours  of 
labor  could  be  worked  out  in  detail  and  put  into  general  effect 
the  war  came  to  a  close.-  Lastly,  mention  must  be  made  of 
the  United  States  Employment  Service,  established  under  the 
Department  of  Labor  for  the  purpose  of  recruiting  war  labor 
and  directing  it  into  the  channels  where  it  was  most  needed. 
L^pon  the  recommendation  of  the  War  Labor  Policies  Board 
the  President  issued  an  appeal  calling  upon  employers  to  have 
recourse  to  the  Employment  Service  in  recruiting  unskilled 
labor,  and  upon  employees  to  answer  the  call  of  the  Service 
for  voluntary  enlistment  in  essential  industries.  Here  again, 
the  war  came  to  an  end  before  the  full  effect  of  the  methods 
introduced  by  the  Employment  Service  could  be  tested  in 
actual  practice. 

Absence  of  compulsion  from  control  over  labor.  The 
measures  adopted  by  the  Government  for  the  control  of  labor 
during  the  war  were  thits  all  lacking  in  the  compulsory  char- 

1  The  text  of  the  program  may  be  found  in  W.  F.  Willoughby, 
"  Government  Organization  in  War  Time  and  After,"  p.  227. 

2  The  program  announced  by  the  Board  may  be  found  in  W.  F. 
Willoughby,  op.  cit.,  p.  241,  and  in  Official  Bulletin.  July  25,  1919. 


EMERGENCY  LEGISLATION  167 

acter  of  legislative  enactments.  In  this  instance  the  United 
States  did  not  follow  the  example  of  Great  Britain  even  to 
the  extent  of  providing  for  the  compulsory  arbitration  of  dis- 
putes in  war  industries.  In  indirect  ways,  however,  pressure 
was  brought  to  bear  both  upon  employers  and  upon  employees. 
In  the  instance  of  a  strike  at  Springfield,  Mass.,  the  refusal 
of  the  employers  to  abide  by  the  decision  of  the  War  Labor 
Board  was  followed  by  the  commandeering  of  their  plant.  In 
another  instance  employees  who  refused  to  abide  by  the  Board's 
decision  were  threatened  with  being  barred  from  employment  in 
war  industries  in  their  community  and  with  being  refused  de- 
ferred classification  in  the  selective  draft,  with  the  result  that 
they  voted  to  return  to  work.  It  cannot  be  said,  however, 
that  the  voluntary  measures  adopted  by  the  Government  were 
wholly  successful,  whether  or  not  coercive  measures  would  have 
been  more  so.  Serious  strikes  took  place  in  the  shipbuilding 
yards,  and  it  was  only  after  considerable  delay  and  disorganiza- 
tion in  their  work  that  the  strikers  yielded  to  the  decision  of 
the  Adjustment  Board.  Considered  as  an  abstract  proposition, 
there  is  no  reason,  as  has  been  said  above,  why  compulsion 
should  not  be  applied  to  workers  in  essential  war  industries 
as  well  as  to  the  men  in  the  army  for  whom  the  munitions 
are  being  made.  The  principle  of  compulsory  arbitration  pre- 
sents in  time  of  peace  both  constitutional  and  practical  objec- 
tions as  applied  to  industries  other  than  public  service  corpora- 
tions and  possibly  those  industries  engaged  in  producing  the 
necessaries  of  life ;  but  there  would  seem  to  be  no  logical  ground 
for  opposing  its  enforcement  in  time  of  war,  although  con- 
siderations of  expediency  may  dictate  resort  to  voluntary 
methods.  No  more  striking  lesson  has  been  taught  by  the 
recent  war  than  that  the  old  distinction  between  combatant  and 
non-combatant  forces  rested  upon  conditions  utterly  different 
from  those  of  the  present  generation,  in  which  mechanical  con- 
trivancies,  manufactured  by  non-combatant  civilians,  were  in 
some  respects  more  important  than  man-power.  And  if  the 
distinction  be  invalid  in  international  law,  it  is  equally  invalid 


i68       POLITICAL  SYSTEMS  IN  TRANSITION 

in  domestic  constitutional  law.  In  defining  the  "  militia  "  as 
consisting  of  "  every  able-bodied  citizen  "  between  the  ages  of 
eighteen  and  forty-five,  the  laws  of  Congress  already  point  the 
way  to  an  extension  of  the  conception  of  national  duty  in 
time  of  war. 

Legislation  to  prevent  interference  with  the  conduct  of 
the  war.  We  may  now  pass  from  the  survey  of  the  laws 
of  a  positive  character  passed  by  Congress  to  meet  the  ex- 
igencies of  the  war,  and  of  the  extensions  of  executive  power 
based  upon  those  and  other  existing  laws,  to  a  consideration 
of  the  prohibitory  laws  passed  with  the  object  of  preventing 
interference  with  the  conduct  of  the  war.  It  was  pointed  out 
above  ^  that  it  is  sounder  constitutional  law  to  justify  the  ex- 
tensive powers  assumed  by  Congress  during  the  course  of  the 
war  upon  the  clause  of  the  Constitution  giving  Congress  the 
power  *'  to  raise  and  support  armies  "  rather  than  upon  any 
implied  powers  possessed  by  Congress  as  the  legislature  of  a 
sovereign  state.  This  construction  leaves  the  other  clauses  of 
the  Constitution  intact  except  where  they  must  be  subordin- 
ated to  the  power  ''  to  raise  and  support  armies."  In  conse- 
quence, while  conceding  to  the  Government  the  fullest  power 
necessary  to  bring  all  the  forces  of  the  nation  to  bear  upon  the 
defeat  of  the  enemy,  it  may  be  held  that  this  power  had  to  be 
exercised  with  consideration  for  those  other  provisions  of  the 
Constitution  which  place  restraints  upon  the  acts  of  the  Gov- 
ernment in  the  interest  of  protecting  the  rights  of  the  individ- 
ual citizen.  The  "  war  powers  "  have,  indeed,  a  position  of 
precedence  over  other  clauses  of  the  Constitution,  but  the 
latter  are  still  in  force  except  in  so  far  as  they  have  been  called 
upon  to  yield  to  the  emergency. 

The  Espionage  Act.  The  .most  important  of  the  prohibi- 
tory laws  passed  by  Congress  were  the  Espionage  Act  of  June 
15,  191 7,  and  its  supplement,  the  Sedition  Act  of  May  16, 
19 1 8.  No  measures  passed  by  Congress  to  meet  the  needs  of 
the  war  were  the  occasion  of  sharper  differences  of  opinion 

iP.  119. 


EMERGENCY  LEGISLATION  169 

at  the  time  of  their  passage  or  met  with  more  opposition  subse- 
quently than  these;  and  at  present  writing  agitation  is  still 
being  carried  on  for  the  purpose  of  securing  the  release  of 
persons  imprisoned  for  acts  in  violation  of  their  provisions. 
The  features  of  the  two  acts  which  were  the  chief  object  of 
attack  were  those  which  placed  restrictions  upon  freedom  of 
speech  and  of  the  press  and  indirectly  upon  the  right  of  public 
assembly,  and  those  which  granted  authority  to  the  Postmaster 
General  to  deny  the  use  of  the  mails  to  objectionable  publica- 
tions. The  issues  involved  in  these  provisions  are  obviously 
of  vital  importance  to  the  future  of  democratic  government, 
and  it  will  be  seen  that  many  of  the  attacks  made  upon  the 
restrictive  features  of  the  two  acts  were  and  are  still  directed 
not  so  much  against  the  alleged  necessity  of  such  measures 
of  protection  in  time  of  war,  as  against  the  introduction  of  a 
principle  of  government  control  which  might  serve  as  a  danger- 
ous precedent  in  the  future  times  of  peace.  Students  of  Amer- 
ican history  will  recall  the  bitter  contest  evoked  by  the  passage 
of  the  Sedition  Act  of  1798,  when  the  party  in  power  en- 
deavored to  protect  itself  against  criticism  by  a  law  providing 
a  fine  and  imprisonment  for  the  act  of  "  combining  "  to  oppose 
measures  of  the  Government,  and  for  "  any  false,  scandalous, 
or  malicious  writing  "  against  the  Government  or  against  its 
high  officials  with  the  intent  "  to  bring  them  into  disrepute." 
At  the  present  day,  now  that  the  special  needs  of  the  war 
have  been  met,  the  issue  is  not  that  of  one  political  party  at- 
tempting to  suppress  another,  but  that  of  the  conservative  ele- 
ments of  both  the  leading  parties  attempting  to  put  a  check 
upon  radical  agitators  who  are  seeking  to  bring  about  a  funda- 
mental change  in  existing  political  institutions. 

Restrictions  upon  freedom  of  speech  and  of  the  press. 
Omitting  for  the  moment  those  features  of  the  Espionage  Act 
which  do  not  bear  upon  restrictions  upon  freedom  of  speech 
or  of  the  press,  title  I,  section  3  of  the  act  made  it  a  penal 
offense  to  "  wilfully  make  or  convey  false  statements  with 
intent  to  interfere  with  the  operations  or  success  of  the  United 


lyo      POLITICAL  SYSTEMS  IN  TRANSITION 

States  or  to  promote  the  success  of  its  enemies,"  or  to  "  wil- 
fully cause  or  attempt  to  cause  insubordination,  disloyalty, 
mutiny,  or  refusal  of  duty  in  the  military  or  naval  forces  of 
the  United  States,"  or  to  "  wilfully  obstruct  the  recruiting  or 
enlistment  service  of  the  United  States."  Title  VIII  of  the 
act  forbids  the  ''  disturbance  "  of  the  foreign  relations  of  the 
United  States  by  false  statements,  misrepresentation,  and  con- 
spiracy to  injure  or  destroy  specific  property  situated  in  a 
foreign  country  with  which  the  United  States  is  at  peace. 
Title  XII  prohibits  the  use  of  the  mails  to  all  publications 
(including  letters)  violating  any  of  the  provisions  of  the  act, 
as  well  as  to  all  publications  containing  any  matter  advocating 
or  urging  treason,  insurrection,  or  forcible  resistance  to  any 
law  of  the  United  States.  During  the  passage  of  the  act  an 
effort  was  made,  at  the  request  of  the  Administration,  to  have 
it  include  a  press  censorship  clause  punishing  persons  who, 
in  violation  of  regulations  prescribed  by  the  President,  should 
publish  information  relative  to  the  public  defense  calculated 
to  be  of  use  to  the  enemy.  But  the  proposed  provision  met 
with  such  opposition  both  in  Congress  and  from  the  press  it- 
self that  in  spite  of  the  statement  of  the  President  that  the 
censorship  provision  was  "  absolutely  necessary  to  the  public 
safety  "  it  was  finally  eliminated  from  the  bill.  A  very  limited 
form  of  censorship  was,  however,  adopted  in  the  provisions 
above  mentioned  making  publications  of  a  certain  character 
non-mailable.  At  the  same  time  a  sort  of  voluntary  censor- 
ship was  adopted  by  the  press,  by  which  news  of  a  kind  that 
would  be  of  obvious  value  to  the  enemy  was  excluded,  and 
news  of  a  doubtful  character  was  submitted  to  the  Committee 
on  Public  Information  before  publicatioti. 

The  Sedition  Act.  The  amendment  to  the  Espionage  Act, 
approved  I\lay  i6,  1918,  known  as  the  Sedition  Act,  met  with 
even  greater  opposition  both  within  and  without  Congress. 
It  consisted  in  an  extension  of  title  I,  section  3  of  the  original 
act  so  as  to  make  it  a  penal  offense  to  make  false  statements 
with  intent  to  obstruct  the  sale  of  Liberty  Bonds,  and  particu- 


EMERGENCY  LEGISLATION  171 

larly  to  "  wilfully  utter,  print,  write  or  publish  any  disloyal, 
scurrilous,  or  abusive  language  about  the  form  of  government 
of  the  United  States,"  or  about  the  national  flag  or  the  uniform 
of  the  army  or  navy,  or  language  calculated  to  bring  the  form 
of  government  or  flag  or  uniform  of  the  army  or  navy  of  the 
United  States  into  disrepute.  Language  or  publications  in- 
tended to  encourage  resistance  to  the  United  States  or  to  pro- 
mote the  cause  of  its  enemies  or  to  bring  about  a  curtailment 
of  the  production  of  materials  necessary  to  the  prosecution 
of  the  war  is  likewise  penalized.  During  the  progress  of  the 
act  through  Congress  an  amendment  was  urged  providing  that 
''  nothing  in  this  act  shall  be  construed  as  limiting  the  liberty 
or  impairing  the  right  of  any  individual  to  publish  or  speak 
what  is  true,  with  good  motives  and  for  justifiable  ends  "  ; 
but  it  was  pointed  out  by  opponents  that  this  would  place  too 
heavy  a  burden  upon  the  prosecution,  and  that  it  would  give 
every  offender  an  opportunity  to  explain  his  views  to  the  court 
in  detail  and  justify  himself  by  the  plea  of  good  motives. 
The  constitutionality  of  the  measure  was  also  attacked,  and 
one  senator  went  so  far  as  to  say  that  the  bill  was  designed 
to  prevent  a  man  "  from  expressing  legitimate  criticism  con- 
cerning the  present  Government." 

Constitutionality  of  the  acts.  The  constitutional  issue 
raised  by  the  Espionage  Act  in  its  original  and  amended  forms 
turns  upon  the  guarantee  of  freedom  of  speech  and  of  the  press 
contained  in  the  ist  Amendment  to  the  Federal  Constitution. 
Is  the  guarantee  there  given  absolute  or  conditional?]  If  abso- 
lute, no  conditions  of  emergency  could  justify  placing  restric- 
tions upon  it.  But  this  has  never  been  the  interpretation  put 
by  the  courts  upon  freedom  of  speech.  Just  as  under  the  laws 
of  the  separate  States  similar  constitutional  guarantees  are  en- 
joyed subject  to  the  common  law  relating  to  slander  and  libel, 
so  the  guarantee  of  the  Federal  Constitution  is  subject  even  in 
time  of  peace  to  such  restraints  as  are  necessary  to  protect 
the  rights  of  the  community  at  large  and  such  as  are  necessary 
to  maintain  the  efficient  administration  of  justice  in  the  face 


172       POLITICAL  SYSTEMS  IN  TRANSITION 

of  statements  in  contempt  of  court.^  x^nd  if  in  time  of  peace 
restraints  may  be  imposed,  much  more  so  may  they  be  imposed 
in  time  of  war  when  the  safety  of  the  state  is  at  stake.  As 
the  danger  to  the  pubHc  from  false  and  inflammatory  state- 
ments becomes  greater,  the  power  of  the  court  to  restrict  them 
becomes  proportionately  enlarged.  In  the  first  case  before  the 
Supreme  Court  of  the  United  States  arising  out  of  a  violation 
of  the  Espionage  Act,  Justice  Holmes  framed  the  issue  as 
follows :  *'  The  question  in  every  case  is  whether  the  words 
used  are  used  in  such  circumstances  and  are  of  such  a  nature 
as  to  create  a  clear  and  present  danger  that  they  will  bring 
about  the  substantive  evils  that  Congress  has  a  right  to  prevent. 
It  is  a  question  of  proximity  and  degree.  When  a  nation  is 
at  war  many  things  that  might  be  said  in  time  of  peace  are 
such  -a  hindrance  to  its  effort  that  their  utterance  will  not  be 
endured  so  long  as  men  fight,  and  that  no  court  could  regard 
them  as  protected  by  any  constitutional  right."  ^  In  a  subse- 
quent case  the  court  again  lays  stress  upon  the  conditions  under 
which  the  statements  in  question  were  made,  and  while  con- 
demning the  defendant  on  the  record  before  the  court  it  went 
so  far  as  to  say  that  *'  it  may  be  that  all  this  might  be  said 

iln  the  case  of  Toledo  Newspaper  Company  v.  United  States  (247 
U.  S.,  402)  the  court,  in  justifying  the  ix>wer  of  the  courts  to  punish 
a  newspaper  for  statements  intended  to  provoke  public  resistance  to 
an  injunction,  spoke  as  follows:  "The  safeguarding  and  fructifica- 
tion of  free  and  constitutional  institutions  is  the  very  basis  and  main- 
stay upon  which  the  freedom  of  the  press  rests,  and  that  freedom, 
therefore,  does  not  and  cannot  be  held  to  include  the  right  virtually  to 
destroy  such  institutions.  It  suffices  to  say  that,  however  complete  is 
the  right  of  the  press  to  state  public  things  and  discuss  them,  that 
right,  as  every  other  right  enjoyed  in  human  society,  is  subject  to  the 
restraints  which  separate  right  from  wrongdoing." 

2  Schenck  v.  United  States,  249  U.  S.,  47.  It  is  of  interest  in  this 
case  that  the  circular  which  the  defendant  was  instrumental  in  dis- 
tributing, while  denouncing  conscription  in  impassioned  terms  and 
vigorously  urging  opposition  to  the  selective  draft,  confined  itself  in 
outward  form  to  peaceful  means  of  action,  such  as  petition  for  the 
repeal  of  the  act.  The  court,  however,  judged  the  circular  by  its  nat- 
ural effect  to  encourage  direct  resistance  to  the  law. 


EMERGENCY  LEGISLATION  173 

or  written  even  in  time  of  war  in  circumstances  that  would 
not  make  it  a  crime.  We  do  not  lose  our  right  to  condemn 
either  measures  or  men  because  the  country  is  at  war."  ^  A 
further  case  decided  at  the  same  time,  and  involving  a  prom- 
inent Socialist  leader,  held  that  it  was  no  justification  of  a 
public  speech,  so  expressed  that  its  natural  and  intended  effect 
was  to  obstruct  the  enlistment  service,  to  assert  that  it  dealt 
with  the  general  theme  of  Socialism  and  was  part  of  a  general 
program  to  obstruct  war  and  expressed  a  general  and  conscien- 
tious belief.^ 

Political  justification  of  the  Sedition  Act.  The  scope  of 
the  Sedition  Act  was  far  wider  than  that  of  the  original 
Espionage  Act  in  respect  to  its  restraints  upon  freedom  of 
speech.  It  was  one  thing  to  prohibit  statements  intended  to 
interfere  with  the  success  of  the  military  or  naval  forces  of 
the  United  States,  or  intended  to  cause  insubordination  or  to 
obstruct  the  enlistment  service  of  the  United  States,  but  a  much 
more  serious  step  to  penalize  "  abusive  language  about  the 
form  of  government  of  the  United  States."  At  first  sight  it 
seemed  to  some  persons  as  if  the  obnoxious  Sedition  Act  of 
1798  was  again  upon  the  books.  But  a  fair  examination  of 
the  clause  just  quoted  will  show  that  it  was  intended  not  to 
repress  criticism  of  the  administration  in  ofiice,  whether  of 
the  President  or  of  any  lesser  official,  with  respect  to  the  con- 
duct of  the  war.  Its  object  was  rather  to  suppress  attacks 
upon  American  governmental  institutions  as  a  whole,  where 
the  effects  of  such  attacks  might  be  to  undermine  the  morale 
of  the  people  at  a  time  when  it  was  of  the  utmost  importance 
to  present  a  united  front  to  the  enemy.  The  assumption  of  the 
law  was  that  American  political  institutions,  whatever  the 
character  of  the  existing  administration,  were  in  themselves 
sound  and  offered  adequate  means  of  reform  in  accordance 
with  prescribed  methods ;  so  that  to  attack  the  American  form 
of  government  was  to  undermine  the  foundations  of  the  national 

1  Frohwerk  v.  United  States,  249  U.  S.,  204. 
*  Debs  V.  United  States,  249  U.  S.,  211. 


174      POLITICAL  SYSTEMS  IN  TRANSITION 

life.  In  time  of  war  when  great  sacrifices  are  being  demanded 
and  the  fullest  cooperation  is  essential  to  success,  it  is  clear 
that  an  attack  upon  the  political  faith  of  the  nation  by  a  minor- 
ity opposed  to  the  policies  adopted  by  the  Government,  what- 
ever the  alleged  sincerity  of  its  motives,  cannot  be  passed  over 
in  silence  without  an  injury  to  the  people  at  large.  When 
issues  as  vital  as  those  involved  in  war  are  at  stake,  the  public 
is  in  no  mood  to  listen  even  to  the  honest  advocates  of  funda- 
mental changes  in  the  machinery  of  the  State,  much  less  to 
those  whose  motives  in  denouncing  the  existing  form  of  gov- 
ernment are  not  above  suspicion.^ 

Broad  scope  of  the  Sedition  Act.  It  cannot  be  denied, 
however,  that  the  terms  of  the  law  were  unnecessarily  broad, 
and  that  they  gave  to  the  courts  a  power  which  could  have  been 
used  in  a  most  oppressive  and  arbitrary  manner  had  not  judi- 
cial traditions  been  present  to  restrain  them.  In  the  single 
case  which  has  thus  far  been  passed  upon  by  the  Supreme 
Court,^  the   facts   sustaining  the  conviction  were  of  such  a 

1  It  is  interesting  to  compare  the  provisions  of  the  Espionage  and  Se- 
dition acts  with  the  order  of  President  Lincoln  in  pursuance  of  the  act 
of  1863,  under  which  the  writ  of  habeas  corpus  was  suspended  with  re- 
spect to  an  aider  or  abetter  of  the  enemy,  who  was  defined  as  "  one  who 
seeks  to  exalt  the  motives, -character,  and  capacity  of  armed  traitors  — 
overrates  the  success  of  our  adversaries  or  underrates  our  own  —  who 
seeks  false  causes  of  complaint  against  our  Government  or  inflames 
party  spirit  among  ourselves  and  gives  to  the  enemy  that  moral  support 
which  is  more  valuable  to  them  than  regiments  of  soldiers  or  millions  of 
dollars."  The  order  is  quoted  by  Senator  Sutherland  as  to  be  "  read 
with  profit "  by  those  who  condemn  the  Sedition  Act  as  unnecessarily 
drastic.    "  Constitutional  Power  and  World  Affairs,"  p.  104. 

2  Abrams  et  al.  v.  United  States,  decided  November  10,  1919.  The 
five  defendants  were  of  Russian  birth  and  were  indicted  for  conspir- 
acy in  publishing  two  leaflets,  one  attacking  the  hypocrisy  of  the  Presi- 
dent in  sending  troops  to  Russia  against  the  Bolsheviki  and  classing 
the  United  States  among  the  capitalistic  nations  which  were  the  one 
enemy  of  the  workers  of  the  world,  and  the  other  urging  workers  in 
ammunition  factories  to  refrain  from  producing  bullets  to  murder 
their  friends  in  Russia,  and  £0  reply  to  the  "barbaric  intervention"  of 
the  United  States  by  a  general  strike. 


EMERGENCY  LEGISLATION  175 

character  as  to  lead  to  a  vigorous  dissent  on  the  part  of  Justice 
Holmes  who  had  delivered  the  opinion  of  the  court  in  the  cases 
arising  under  the  Espionage  Act  referred  to  above.  The  ma- 
jority of  the  court,  after  reciting  details  of  the  circulars  upon 
which  the  indictment  was  based,  found  that  "  the  plain  pur- 
pose of  their  propaganda  was  to  excite,  at  the  supreme  crisis 
of  the  war,  disaflFection,  sedition,  riots,  and,  as  they  hoped,  re- 
volution, in  this  country,  for  the  purpose  of  embarrassing  and 
if  possible  defeating  the  military  plans  of  the  Government  in 
Europe  '* ;  and  they  regarded  the  advocacy  of  a  general  strike 
as  language  used  with  intent  to  encourage  resistance  to  the 
United  States  in  the  war.  In  his  dissenting  opinion  Justice 
Holmes  insisted  that  in  order  to  warrant  conviction  there  must 
be  in  every  case  a  "  present  danger  of  immediate  evil  or  an 
intent  to  bring  it  about "  if  Congress  is  to  be  warranted  in  set- 
ting a  limit  to  the  expression  of  opinion  where  private  rights 
are  not  concerned ;  and  he  failed  to  find  in  the  leaflets  evidence 
of  actual  intent  in  the  strict  sense  required  by  the  nature  of  the 
law,  the  purpose  of  the  defendants  being  rather  to  prevent  in- 
tervention in  Russia  than  to  impede  the  prosecution  of  the  war 
against  Germany.  In  conclusion  the  Justice  summed  up  what 
seemed  to  him  to  be  the  proper  attitude  of  the  Government 
towards  restrictions  upon  freedom  of  speech  even  in  the  case 
of  attacks  directed  against  the  Constitution  itself.  "  When 
men  have  realized,"  he  said,  "  that  time  has  upset  many  fight- 
ing faiths,  they  may  come  to  believe  even  more  than  they  be- 
lieve the  very  foundations  of  their  own  conduct  that  the 
ultimate  good  is  better  reached  by  free  trade  in  ideas  —  that  the 
best  test  of  truth  is  the  power  of  the  thought  to  get  itself 
accepted  in  the  competition  of  the  market;  and  that  truth  is 
the  only  ground  upon  which  their  wishes  safely  can  be  car- 
ried out.  That,  at  any  rate,  is  the  theory  of  our  Consitution. 
It  is  an  experiment,  as  all  life  is  an  experiment.  .  .  .  While 
that  experiment  is  part  of  our  system  I  think  that  we  should 
be  eternally  vigilant  against  attempts  to  check  the  expression 
of  opinions  that  we  loathe  and  believe  to  be  fraught  with  death, 


176      POLITICAL  SYSTEMS  IN  TRANSITION 

unless  they  so  imminently  threaten  immediate  interference  with 
the  lawful  and  pressing  purposes  of  the  law  that  an  immediate 
check  is  required  to  save  the  country." 

Exclusion  of  obnoxious  publications  from  the  mails.  A 
more  controversial  question  arose  in  connection  with  the  powers 
assumed  by  the  Postmaster  General  in  connection  with  title 
XII  of  the  act  declaring  publications  which  violated  any  of  the 
provisions  of  tlie  act  to  be  non-mailable.  This  provision  of  the 
law  was  interpreted  by  the  Postmaster  General  as  empower- 
ing him  to  declare  what  publications  were  actually  in  violation 
of  the  act,  and  he  was  thus  enabled  to  exercise  a  form  of  cen- 
sorship over  the  press.  The  most  important  case  that  arose 
under  this  section  of  the  law  was  that  of  the  Masses  Publish- 
ing Company  v.  Patten/  which  grew  out  of  the  decision  of 
Postmaster  Patten  of  New  York  City  in  excluding  the  August, 
1917,  issue  of  that  publication  from  the  mails.  The  final  deci- 
sion of  the  higher  court  confirmed  the  right  of  the  Postmaster 
General  to  exclude  from  the  mails  matter  declared  by  Congress 
to  be  non-mailable,  and  in  -so  doing  to  use  his  judgment  and 
discretion  as  to  the  character  of  the  publication,  his  decision 
being  regarded  as  conclusive  by  the  courts  unless  it  should  ap- 
pear to  be  clearly  wrong.  Circulation  of  a  publication  in  the 
mails  has  been  held  on  a  number  of  occasions  not  to  be  part 
of  the  freedom  of  the  press,  and  in  this  present  instance  the 
court  pointed  out  that  "  it  is  at  least  arguable  whether  any 
constitutional  government  can  be  judicially  compelled  to  assist 
in  the  dissemination  of  something  that  proclaims  itself  revolu- 
tionary." It  has  been  freely  asserted,  however,  that  the  deci- 
sions of  the  Postmaster  General  were  in  many  instances  highly 
arbitrary,  and  not  based  upon  what  "  a  reasonable  man  "  would 
consider  as  a  violation  of  the  law,  being  particularly  drastic 
in  respect  to  statements  reflecting  unfavorably  upon  the  allies 
of  the  United  States. 

Constitutionality  of  a  press  censorship.  It  was  pointed  out 
above  that  the  attempt  made  at  the  time  of  the  passage  of  the 

1 246  Federal  Reporter,  33. 


EMERGENCY  LEGISLATION  177 

original  Espionage  Act  to  establish  a  censorship  of  the  press 
had  to  be  abandoned.  It  is  still  a  matter  of  controversy 
whether  such  a  censorship  would  be  constitutional.  A  dis- 
tinction must  here  be  made  between  a  provision,  such  as 
the  one  before  Congress,  penalizing  statements  useful  to  the 
enemy  made  in  violation  of  regulations  issued  by  the  Presi- 
dent and  the  creation  of  a  board  of  censors  who  should  pass 
in  advance  upon  what  might  or  might  not  be  published.  No 
constitutional  objection  would  seem  to  hold  against  the  former 
restriction  once  it  be  admitted  that  the  need  of  some  ^uch 
restraint  actually  existed.  The  traditional  doctrine  of  the 
liberty  of  the  press  has  been  that  it  consisted  in  freedom  from 
restraints  imposed  previous  to  publication,  leaving  it  to  the 
publisher  subsequently  to  defend  himself  before  the  courts 
against  the  charge  of  having  published  slanderous  or  seditious 
matter.  Nor  does  there  seem  to  the  present  writer  any  con- 
stitutional objection  even  to  the  establishment  of  a  board  of 
censors  who  should  prevent  by  anticipation  the  publication  of 
injurious  matter,  again  assuming  the  necessity  of  such  action 
for  the  protection  of  the  country.  If  freedom  of  speech  can 
be  made  to  yield  to  the  demands  of  war,  freedom  of  the  press 
can  equally  be  called  upon  to  subordinate  itself  to  the  national 
exigency.  Whether  as  a  political  issue  the  establishment  of 
such  a  censorship  would  have  been  wise  or  expedient  in  the  re- 
cent war  is,  of  course,  another  question,  and  it  is  possible  to 
answer  it  in  the  negative  without  denying  the  constitutional 
right  of  the  state  to  meet  the  demands  of  self-preservation.^ 

^On  this  general  subject  the  following  studies  may  be  consulted: 
"  Freedom  of  Speech  and  of  the  Press  in  War  Time :  the  Espionage 
Act,"  by  T.  F.  Carroll,  in  "Michigan  Law  Review,"  June,  1919;  "Free- 
dom of  Speech  in  War  Time,"  by  Z.  Chafee,  Jr.,  in  "  Harvard  Law  Re- 
view," June,  1919. 

The  aftermath  of  the  Espionage  and  Sedition  acts  has  taken  the 
form  of  a  number  of  bills  by  which  it  is  proposed  that  Congress  re- 
strict the  advocacy  of  radical  methods  of  changing  the  form  of  Gov- 
ernment of  the  United  States,  whether  by  a  general  strike  or  by  any 
other  method  not  provided  for  by  the  Constitution. 


178      POLITICAL  SYSTEMS  IN  TRANSITION 

The  War  Materials  Destruction  Act.  Among  other  meas- 
ures passed  by  Congress  to  prevent  interference  with  the  con- 
duct of  the  war  were  the  War  Materials  Destruction  Act,  ap- 
proved April  20,  1918,  and  the  Trading  with  the  Enemy  Act, 
approved  October  6,  191 7.  The  former,  otherwise  known  as 
the  Sabotage  Act,  is  of  interest  because  of  the  collateral  ques- 
tion of  conscripting  labor  which  was  raised  during  its  pas- 
sage. It  penalizes  the  act  of  wilfully  destroying  war  ma- 
terials, or  factories  engaged  in  their  production,  or  utilities, 
such  as  railroads  and  bridges,  used  in  connection  with  them ; 
also  the  act  of  wilfully  making  or  causing  to  be  made  in  a  de- 
fective manner  any  war  material  or  instruments  used  in  the 
production  of  war  material.  When  the  original  bill  came  be- 
fore Congress  an  amendment  was  carried  penalizing  the  act  of 
conspiring  to  prevent  the  erection  of  war  premises  or  the  pro- 
duction of  war  material  with  intent  to  obstruct  the  United 
States  in  preparing  for  or  in  carrying  on  the  war.  This  amend- 
ment was  interpreted  as  an  attempt  to  prevent  strikes  among  the 
workers  in  war  industries,  and  a  second  amendment  was 
adopted  to  the  effect  that  nothing  in  the  act  should  be  so  con- 
strued as  to  prevent  employees  from  agreeing  to  stop  work 
for  the  bona  fide  purpose  of  securing  better  wages  or  condi- 
tions of  employment.  The  second  amendment  met  with  such 
sharp  opposition  in  the  Senate  that  the  report  of  the  conference 
committee  was  rejected,  and  it  was  only  after  further  delay 
that  a  suggestion  of  Mr.  Gompers,  that  either  both  amend- 
ments should  be  retained  or  both  eliminated,  was  adopted  and 
the  two  houses  reached  a  decision  to  eliminate  them. 

The  Trading;  with  the  Enemy  Act.  The  Trading  with  the 
Enemy  Act  was  a  pure  war  measure  primarily  designed  to 
prohibit  commercial  intercourse  with  the  enemy,  but  contain- 
ing in  addition  provisions  authorizing  the  President  to  pro- 
vide a  censorship  of  messages  between  the  United  States  and 
any  foreign  country,  to  issue  regulations  with  regard  to  the 
foreign-language  press  within  the  country  to  prevent  its  use 
to  promote  disloyalty,  and  to  lay  an  embargo  on  imports  from 


EMERGENCY  LEGISLATION  179 

any  foreign  country.  A  further  important  provision  enabled 
the  Government  to  take  over  all  property  situated  in  the  United 
States  belonging  to  an  enemy  or  ally  of  the  enemy.  This  last 
provision  specifically  created  the  office  of  Alien  Property  Cus- 
todian, who  was  empowered  to  seize  and  sequestrate  property 
of  the  enemy  as  described  in  the  act.  The  property  taken 
over  was  not  that  of  German  citizens  resident  in  the  United 
States,  but  of  persons  residing  in  the  enemy  country,  in  order 
that  not  only  should  no  profit  be  derived  from  such  property 
to  the  advantage  of  the  enemy,  but  that  in  cases  where  the 
property  existed  in  the  form  of  industrial  enterprises,  these 
latter  should  not  be  operated  in  a  manner  detrimental  to  the 
interests  of  the  United  States,  It  is  a  problem  not  within  the 
scope  of  the  present  volume  how  far  the  activities  of  the  Alien 
Property  Custodian  exceeded  the  rights  of  the  United  States 
under  the  customary  rules  of  international  law.  That  there 
was  a  marked  departure  from  the  practice  of  previous  wars  is 
clear;  while  the  fact  that  the  changed  circumstances  of  the 
recent  war  demanded  such  a  departure  is  but  another  com- 
ment upon  the  paradoxical  character  of  the  "  laws  of  war." 

The  problem  of  the  enemy  alien.  The  declaration  of  war 
raised  in  an  acute  form  the  question  of  the  status  of  unnatural- 
ized persons  of  foreign  birth  who  were  present  to  the  num- 
ber of  many  millions  in  our  population.^  These  aliens  in- 
cluded both  those  born  on  the  soil  of  the  enemy  country,  or 
bom  of  enemy  parentage  in  countries  other  than  the  United 
States  and  Great  Britain,  and  those  born  in  countries  other 
than  those  of  the  enemy  and  of  other  than  enemy  parentage. 
The  former  group  were  bound  by  a  legal  bond  of  allegiance  to 
the  enemy,  and  might  in  many  or  in  most  cases  be  regarded  as 
in  sympathy  with  the  enemy  as  against  the  country  of  their 
residence.  In  addition  to  these  unnaturalized  enemy  aliens 
were  others  of  enemy  birth  or  parentage  who  had  become 

1  Figures  compiled  by  the  National  Americanization  Committee 
early  in  191 8  showed  that  there  were  in  the  United  States  thirteen 
million  persons  of  foreign  birth  and  thirty-three  million  of  direct  for- 
eign parentage.    "American  Year  Book,  1918,"  p.  797. 


i8o      POLITICAL  SYSTEMS  IN  TRANSITION 

naturalized,  but  whose  affections  were  still  tied  up  with  their 
mother  country  and  who  had  never  contemplated  the  practical 
possibility  of  having  to  choose  between  it  and  their  adopted 
country.  As  a  result  of  this  situation  the  Federal  Government 
found  it  necessary  to  take  steps  for  the  protection  of  the  coun- 
try against  any  overt  acts  which  sympathizers  with  the  enemy 
might  be  led  to  commit  either  upon  their  own  initiative  or  at 
the  instigation  of  secret  agents  of  the  enemy.  Even  before  the 
entrance  of  the  United  States  into  the  war  the  numerous  ex- 
plosions in  ammunition  factories  and  other  outrages  pointed 
to  the  existence  of  an  organized  campaign  to  obstruct  the 
industries  of  the  United  States  in  so  far  as  they  might  be  en- 
gaged in  the  manufacture  of  war  material  to  be  sold  to  the 
allied  powers. 

Control  over  persons  and  property  of  enemy  aliens.  Au- 
thority had  already  been  granted  by  Congress  to  the  Presi- 
dent before  the  declaration  of  war  for  the  arrest  and  detention 
of  alien  enemies,^  and  it  was  only  necessary  for  the  Executive 
Department  to  determine  upon  the  degree  of  restraint  to  be  im- 
posed upon  them.  Entrance  into  the  country  or  departure  from 
it  was  denied  to  them ;  zones  and  districts  were  fixed  into  which 
they  were  not  permitted  to  enter ;  registration  was  required  of 
them;  their  freedom  of  movement  was  in  certain  cases  re- 
stricted to  their  places  of  residence  and  of  business;  and  their 
freedom  of  speech  limited  by  the  provisions  of  the  Espionage 
and  Sedition  Acts.  An  elaborate  secret  service  was  created 
by  the  Department  of  Justice  under  its  Bureau  of  Investigation, 
the  object  of  which  was  to  keep  in  touch  with  enemy-alien 
activities  and  enable  the  government  to  take  immediate  action 
in  cases  where  the  restrictions  imposed  were  being  violated. 
Restrictions  were  placed  upon  the  business  activities  of  enemy 
aliens  to  the  extent  necessary  to  prevent  assistance  being  given 
to  the  enemy  by  indirect  or  even  negative  means,  as  for  ex- 
ample through  the  withholding  from  the  use  of  the  public  of 

^An  amendment  was  adopted  extending  the  provisions  of  the  act  to 
wgmen  as  well  as  to  men. 


EMERGENCY  LEGISLATION  i8i 

patented  articles.  Provision  was  made  that  patents  and  copy- 
rights owned  or  controlled  by  the  enemy  should  be  open  to 
use  by  citizens  of  the  United  States,  and  restrictions  were 
placed  upon  the  further  granting  of  patents  and  copyrights  to 
enemy  aliens.  Branches  of  insurance  companies  incorporated 
in  the  country  of  the  enemy  or  of  its  allies  were  brought  under 
supervision  and  were  forbidden  to  write  insurance  after  De- 
cember 9,  1917,  or  to  enter  into  reinsurance  contracts  after 
January  11,  1918;  but  no  restriction  was  placed  upon  existing 
contracts,  which  were  allowed  to  run  until  regular  expiration. 
Functions  of  the  Alien  Property  Custodian.  More  drastic, 
-however,  than  the  restrictions  upon  the  personal  freedom  and 
business  affairs  of  resident  enemy  aliens  were  the  measures 
taken  by  the  Government  to  sequestrate  and  administer  the 
property  located  in  the  United  States  of  enemy  citizens  resid- 
ing within  the  military  lines  of  Germany  and  her  allies  or  resid- 
ing outside  the  United  States  and  doing  business  inside  those 
lines.  The  object  of  this  section  of  the  Trading  with  the 
Enemy  Act  was  not  to  confiscate  the  property  of  the  enemy, 
which  was  protected  by  the  rules  of  international  law,  but  to 
prevent  the  enemy  from  reaping  any  advantage  from  the  pos- 
session by  its  citizens  of  property  situated  in  the  United  States. 
The  Alien  Property  Custodian  was  empowered  to  receive  all 
money  and  property  in  the  United  States  due  or  belonging  to 
an  enemy  or  ally  of  the  enemy,  and  to  hold  and  administer  the 
same  under  the  general  direction  of  the  President.  Debts 
owing  to  persons  in  the  country  of  the  enemy  or  of  its  allies 
were  to  be  paid  over  to  the  Alien  Property  Custodian  and 
should  be  thereupon  regarded  as  discharged.  Mortgages  might 
be  enforced  upon  the  property  of  the  enemy  and  the  proceeds  of 
the  sale  in  excess  of  the  obligation  were  to  be  transferred  to 
the  care  of  the  same  official.  The  administrative  machinery 
created  by  the  Alien  Property  Custodian  for  the  performance 
of  the  above  duties  was  elaborate,  consisting  partly  of  an  of- 
ficial force  of  investigators  and  partly  of  the  volunteer  assistants 
placed  at  his  service  by  the  heads  of  the  banks,  trust  com- 


i82      POLITICAL  SYSTEMS  IN  TRANSITION 

panics,  and  corporations  whose  books  had  to  be  examined.  In 
some  cases  the  property  thus  discovered  and  taken  possession 
of  was  administered  by  the  Custodian  as  trustee  for  the  owners, 
but  in  most  cases  it  became  necessary  to  sell  the  property  or 
business  as  a  going  concern  and  hold  the  funds  in  trust  for 
the  owners.  In  the  latter  case  provision  was  made  that  the 
property  should  be  sold  only  to  American  citizens,  who  were 
obligated  not  to  resell  such  property  to  persons  not  citizens  of 
the  United  States.  Undoubtedly  the  action  thus  taken  by  the 
L^nited  States  was,  as  has  been  said  above,  in  excess  of  the 
prescriptions  of  international  law  in  respect  to  the  property  of 
enemy  citizens,  and  its  justification  must  be  sought  in  the 
changed  conditions  of  modern  finance  which,  by  means  of  a 
complex  system  of  international  exchange,  permits  the  trans- 
fer of  funds  in  ways  that  easily  evade  detection.  A  further 
justification  was  ofifered  by  the  Alien  Property  Custodian  in 
the  fact  that  many  of  the  investments  of  German  citizens  in 
the  United  States  were  made  with  the  object  of  securing  con- 
trol over  industries  contributing  to  the  successful  prosecution 
of  war,  and  that  in  many  cases  these  industries  were  at  the 
same  time  being  made  the  center  of  a  secret  service  system 
maintained  by  the  enemy.* 

^It  is  of  interest  to  note  that  the  peace  treaty  with  Germany  stipu- 
lates that  the  Allied  and  Associated  Powers  reserve  the  right  to  re- 
tain and  liquidate  all  property,  rights  and  interests  within  their  terri- 
tory belonging  to  citizens  of  Germany,  The  net  proceeds  of  the  sale 
of  such  property,  both  during  and  after  the  war,  are  credited  to  Ger- 
many, and  to  be  applied  by  each  State  to  the  satisfaction  of  claims  by 
its  citizens  with  regard  to  their  property  in  Germany  or  to  the  satis- 
faction of  debts  owing  to  them  by  Germans.  Germany  on  her  part 
undertakes  to  compensate  her  citizens  in  respect  to  the  sale  or  reten- 
tion of  such  property.  In  answer  to  the  complaint  of  the  German  del- 
egation that  this  procedure  amounted  to  a  confiscation  of  the  property, 
the  Allies  replied  that  it  was  justified  on  the  ground  that  Germany's 
resources  were  wholly  inadequate  and  that  the  Allied  Powers  them- 
selves were  obliged  to  take  over  foreign  investments  of  their  citizens 
to  meet  foreign  obligations,  giving  their  own  domestic  obligations  in 
return. 


EMERGENCY  LEGISLATION  183 

Comprehensiveness  of  the  war  powers  of  the  Government. 

We  have  seen  that  the  demands  of  the  war  brought  about  a 
wide  extension  of  the  powers  of  the  Federal  Government,  lead- 
ing Congress  to  enact,  in  the  exercise  of  its  power  "  to  raise 
and  support  armies,"  legislation  of  a  very  comprehensive  char- 
acter looking  to  the  mobilization  of  all  the  forces  of  the  coun- 
try deemed  necessary  to  attain  the  objects  of  the  war.  At  the 
same  time  the  executive  department  of  the  Government  was 
led  to  interpret  liberally  the  authority  conferred  upon  it  by 
Congress  and  in  some  instances  to  act  even  without  clear  statu- 
tory authorization.  In  none  of  these  cases,  however,  was  the 
constitutional  right  of  Congress  or  of  the  President  to  take  such 
action  questioned  by  the  Supreme  Court  as  the  authoritative 
interpreter  of  the  Constitution.  It  would  seem,  therefore,  that 
it  may  be  laid  down  as  a  general  principle  that  the  power  of  the 
Federal  Government  to  prosecute  a  war  is  as  comprehensive 
as  the  needs  of  the  situation  demand;  and  that  the  normal 
restrictions  placed  by  the  Constitution  upon  the  central  Gov- 
ernment in  favor  of  the  States  and  in  favor  of  the  rights  of  the 
individual  citizen,  while  still  operative  in  time  of  war,  do  not 
in  actual  fact  constitute  an  interference  with  the  free  hand  of 
the  central  Government  in  the  accomplishment  of  both  strictly 
military  objects  and  other  non-military  objects  regarded  as 
essential  to  the  attainment  of  military  ends.  The  problem 
now  to  be  examined  is  the  relation  of  the  organization  of  the 
Federal  Government  to  the  conduct  of  the  war.  Was  this 
organization  equal  in  efficiency  to  the  powers  conferred  upon  it 
and  to  the  tasks  confronted  by  it?  And  if  not,  what  changes 
were  required  in  it  and  how  far  were  these  changes  effective 
to  accomplish  the  desired  object?  It  was  here  that  the  Con- 
stitution of  the  United  States  was  put  to  the  severest  test, 
and  here  that  the  most  serious  flaws  were  discovered  in  its  ma- 
chinery of  government.  The  lessons  that  may  be  learnt  from 
the  experience  of  the  war  for  the  present  period  of  reconstruc- 
tion will  appear  incidentally  in  the  following  pages,  and  will  be 
discussed  at  greater  length  in  the  concluding  chapter. 


CHAPTER  VIII 

CHANGES  IN  THE  ORGANIZATION  OF  THE 
GOVERNMENT 

The  Executive  Department  in  time  of  war.     The  chief 

burden  of  the  war  fell  naturally  upon  the  executive  depart- 
ment of  the  Government.  Besides  being  commander-in-chief 
of  the  army  and  navy  the  President  was  at  the  same  time  the 
head  of  a  vast  administrative  system  of  departments  and  sub- 
departments  which  in  time  of  peace  fulfilled  their  functions 
according  to  set  rules,  but  which  in  time  of  war  were  thrown 
out  of  gear  by  the  necessity  of  undertaking  new  tasks  and  of 
creating  new  machinery  to  accomplish  them.  How  far  did 
the  apparent  unity  of  command  in  the  administrative  system 
prove  effective?  Had  the  President  the  complete  control  over 
the  departments  of  the  administration  which  his  position  of 
chief  executive  appeared  to  confer  upon  him?  To  what  ex- 
tent did  the  several  departments  cooperate  with  one  another 
in  order  to  prevent  overlapping  and  duplication  of  functions? 
Had  the  President  a  free  hand  in  rearranging  the  personnel  and 
activities  of  the  departments,  so  as  to  be  able  to  make  the 
transfers  and  combinations  called  for  by  the  special  condi- 
tions? Finally,  to  what  degree  was  there  cooperation  be- 
tween the  executive  departments  and  the  various  committees  of 
Congress  dealing  with  subjects  which  fell  within  the  range  of 
the  particular  department?  To  answer  these  questions  ade- 
quately would  require  a  complete  history  of  the  war  adminis- 
tration; but  they  may  be  answered  here  in  sufficient  detail 
to  enable  us  to  judge  more  or  less  accurately  the  character  of 
the  national  administration  when  confronted  with  the  problems 
of  war,  and  to  disclose  to  some  extent  the  weaknesses  of  the 
present  system  and  the  need  of  permanent  changes  in  its  or- 
ganization and  functions. 

184 


CHANGES  IN  GOVERNMENT  185 

The  President  a  "  one-man  "  executive.  Even  within  the 
limits  of  restrictions  which  will  be  later  pointed  out,  the  Presi- 
dent of  the  United  States  possesses  powers  which  no  other 
democratic  nation  has  seen  fit  to  entrust  to  the  elected  head 
of  the  Government.  While  the  Constitution  of  the  United 
States  was  pending  ratification,  Alexander  Hamilton  under- 
took a  defense  of  tlie  decision  of  the  Constitutional  Convention 
in  favor  of  a  single  Executive,  and  argued  that  "  energy  in 
the  Executive  is  a  leading  character  in  the  definition  of  good 
government."  "  They  have,"  he  said  of  the  framers  of  the 
Constitution,  "  with  great  propriety,  considered  energy  as  the 
most  necessary  qualification  of  the  former  (the  Executive),  and 
ha^'e  regarded  this  as  most  applicable  to  power  in  a  single 
hand."  And  later  he  observed  that  ''  in  the  conduct  of  war, 
in  which  the  energy  of  the  Executive  is  the  bulwark  of  the 
national  security,  every  thing  would  be  to  be  apprehended 
from  its  plurality."  ^  That  the  President  should  have  asso- 
ciated with  him  a  council  *'  whose  concurrence  is  made  neces- 
sary to  the  operations  of  the  ostensible  Executive  "  would,  he 
considered,  infect  the  executive  authority  "  with  a  spirit  of 
habitual  feebleness  and  dilatoriness."  Even  Jefferson,  who 
was  at  first  opposed  to  a  single  Executive  and  in  favor  of  a 
supreme  executive  council  as  tending  less  towards  centrahzation 
in  government,  confessed  in  later  years  that  *'  plurality  in  the 
Supreme  Executive  will  for  ever  split  into  discordant  factions, 
distract  the  nation,  annihilate  its  energies." 

Extent  of  power  he  may  exercise.  Commenting  on  the 
above  opinion  of  Jefferson,  which  he  reproduces  at  greater 
length,  a  British  statesman  is  led  to  observe  that  **  nothing 
could  more  strongly  condemn  the  intrinsic  weakness  of  gov- 
ernment by  a  Cabinet,  especially  in  time  of  war,  and  nothing 
could  more  strongly  recommend  the  necessity  of  a  one-man 
Executive  for  democracy  " ;  ^  and  he  goes  so  far  as  to  assert 

1 "  Federalist,"  No.  70. 

2  Politicus,  "  Many-Headed  Democracies  and  War,"  "  Fortnightly  Re- 
view," May  I,  1918. 


i86      POLITICAL  SYSTEMS  IN  TRANSITION 

that  "  while  a  one-man  Executive  will  provide  '  an  energy 
and  coherence  of  administrative  action  such  as  no  other  sys- 
tem can  secure,'  the  British  system  of  Cabinet  government, 
which  has  been  copied  by  the  European  democracies,  provides 
vacillation,  incoherence,  muddle,  and  endless  delays.  That 
has  been  abundantly  proved  by  the  present  war."  The  Presi- 
dent of  the  United  States  is,  indeed,  a  dictator  within  a  limited 
sphere  and  for  the  fixed  term  of  his  office.  In  time  of  war 
it  is  possible  for  Congress  to  confer  upon  him  almost  unlimited 
power,  so  that  the  question  of  an  efficient  or  inefficient  war 
administration  becomes  mainly  a  question  of  the  personal 
ability  of  the  President  and  of  the  extent  to  which  Congress  is 
willing  to  go  in  authorizing  executive  action.^  Assuming  a 
willingness  on  the  part  of  Congress  to  grant  such  powers  as 
are  needed  by  the  President  for  the  effective  prosecution  of 
the  war,  there  is  nothing  to  prevent  him  from  possessing  for 
the  time  practically  absolute  authority  and  from  unifying  in 
his  person  all  of  the  agencies  of  the  Government.  The  Con- 
stitution places  no  obstacle  in  the  way  of  the  complete  cen- 
tralization of  all  the  war  activities  of  the  administration. 

The  President  and  the  administrative  departments.  It  is 
somewhat  remarkable  that  while  Congress  was  ready,  as  we 
have  seen,  to  confer  upon  the  President  most  of  the  powers 
needed  for  mobilizing  the  military  forces  and  the  financial  and 
industrial  resources  of  the  country,  it  appeared  somewhat  re- 
luctant to  allow  him  a  free  hand  in  the  reorganization  of  the 
administrative  departments.  It  is  of  importance  to  observe 
that  in  respect  to  the  question  of  unity  of  control  over  the  ad- 
ministrative system  at  the  beginning  of  the  war,  the  President's 

lit  is  inaccurate  to  speak  of  Congress  as  "conferring  power"  upon 
the  President,  since  the  President  can  but  execute  such  measures  as 
arc  adopted  by  Congress,  and  a  delegation  of  the  legislative  power  of 
Congress  to  the  President  would  be  unconstitutional.  It  is  common 
practice,  however,  to  speak  of  grants  of  power  by  Congress  to  the 
President,  since  for  all  practical  purposes  the  passage  of  a  law  which 
brings  the  executive  powers  of  the  President  into  action  is  equivalent 
to  a  grant  of  power  or  conferring  of  authority. 


CHANGES  IN  GOVERNMENT  187 

position  of  supreme  command  was  no/  in  fact  what  it  appeared 
to  be  on  the  surface.  For  unity  of  control  implies  the  power  to 
command  the  services  of  subordinates  and  to  dictate  their 
functions  according  to  the  commander's  judgment  of  present 
needs.  But  it  will  be  remembered  that  while  the  President  is 
invested  by  the  Constitution  with  the  executive  power  of  the 
Government,  the  administrative  departments  through  which  the 
positive  legislation  of  Congress  is  put  into  effect  are  conducted 
in  accordance  with  definite  statutory  regulations.  It  is  for 
Congi-ess  to  determine  what  shall  be  the  organization  of  the 
Department  of  the  Interior,  for  example,  and  what  functions 
its  officials,  shall  perform;  and  the  President  can  but  play  the 
part  of  superintendent,  with  no  power  to  alter  policies  except 
in  respect  to  those  minor  matters  which  Congress  has  left  to 
the  decision  of  the  head  of  the  department,  who,  being  the 
President's  appointee,  may  be  supposed  to  be  ready  to  take 
counsel  with  him.  For  a  change  in  the  duties  to  be  performed 
by  a  department,  or  for  a  reorganization  of  its  personnel,  or  for 
a  grouping  of  the  personnel  of  several  departments  and  a  com- 
bination of  their  functions,  the  President  must  apply  to  Con- 
gress for  definite  statutory  authorization.  So  little  was  the 
President  master  of  the  administrative  departments  of  the 
Government  at  the  beginning  of  the  war  that  it  would  have  been 
an  actual  violation  of  the  law  for  him  to  have  used  any  part  of 
the  public  funds  to  pay  the  expenses  of  any  commission  or 
board  the  creation  of  which  had  not  been  authorized  by  act  of 
Congress;  nor  was  the  President  at  liberty  to  detail  any  part 
of  the  personnel  of  the  existing  departments  to  any  such  un- 
authorized commission  or  board.^     In  consequence,  the  pas- 

lAct  of  March  4,  1909.  Professor  Ford,  after  quoting  the  text  of 
the  act,  makes  some  illuminating  comments  upon  the  general  relations 
of  the  Executive  to  Congress.  "  The  inadequacy  of  the  statutory 
powers  of  the  President  of  the  United  States,"  he  says,  "  is  causing 
his  office  to  have  a  strong  tendency  to  assume  the  character  of  a  dic- 
tatorship, acting  without  regulation  or  control  in  the  exercise  of  the 
vague  and  illimitable  war  powers  of  the  Constitution."  "  The  War 
and  the  Constitution,"  "  Atlantic  Monthly,"  October,  1917,  p.  492. 


i88      POLITICAL  SYSTEMS  IN  TRANSITION 

sage  of  many  of  the  laws  described  above,  by  which  Con- 
gress conferred  new  powers  upon  the  President  for  the  prose- 
cution of  the  war,  found  the  executive  department  without 
any  adequate  organization  ready  to  put  the  law  into  effect ;  and 
in  a  number  of  cases  it  was  necessary  to  delay  action  upon  the 
law  until  the  necessary  administrative  machinery  could  be 
created. 

The  Council  of  National  Defense.  One  agency  of  co- 
ordination did,  it  is  true,  exist  at  the  beginning  of  the  war  in 
the  shape  of  the  Council  of  National  Defense.  This  body, 
already  under  consideration  for  several  years,  was  created  by 
a  clause  in  the  Army  Appropriation  Act  of  March  29,  1916, 
at  a  time  when  it  seemed  not  improbable  that  the  United 
States  might  be  drawn  into  the  war.  It  consisted  of  the  Secre- 
taries of  War,  the  Navy,  the  Interior,  Agriculture,  Commerce 
and  Labor,  and  its  general  purpose  was  defined  in  the  act  as 
being  '*  the  coordination  of  industries  and  resources  for  the 
national  security  and  welfare,"  and  its  specific  duties  were 
declared  to  be  "  to  supervise  and  direct  investigations  and  make 
recommendations  to  the  President  and  the  heads  of  the  execu- 
tive departments  as  to  the  location  of  railroads  with  the  ob- 
ject of  expediting  the  concentration  of  troops  and  supplies  to 
points  of  defense,  the  coordination  of  military,  industrial,  and 
commercial  purposes  in  the  location  of  highways  and  branch 
lines  of  railroad,  the  mobilization  of  military  and  naval  re- 
sources for  defense,  the  increase  of  domestic  production  of 
articles  and  materials  essential  to  the  support  of  armies  and 
of  the  people  during  the  interruption  of  foreign  commerce, 
and  the  "  creation  of  relations  "  which  would  render  possible 
in  time  of  need  the  immediate  concentration  and  utiHzation  of 
the  resources  of  the  nation.  In  pursuance  of  the  functions  thus 
assigned  to  it  the  Council  of  National  Defense  was  authorized 
to  nominate  for  appointment  by  the  President  an  Advisory 
Commission  "  consisting  of  not  more  than  seven  persons,  each 
of  wliom  shall  have  special  knowledge  of  some  industry,  pub- 
lic utility,  or  the  development  of  some  natural  resource,  or  be 


CHANGES  IN  GOVERNMENT  189 

otherwise  specially  qualified,  in  the  opinion  of  the  Council,  for 
the  performance  of  the  duties  hereinafter  provided."  More- 
over, the  Council  was  authorized  to  **  organize  subordinate 
bodies  for  its  assistance  in  special  investigations,  either  by  the 
employment  of  experts  or  by  the  creation  of  committees  of 
specially  qualified  persons  to  serve  without  compensation,  but 
to  direct  the  investigations  so  employed."  These  subordinate 
agencies  became  during  the  course  of  the  war  exceedingly 
numerous,  and  in  the  performance  of  their  specialized  functions 
they  drew  upon  the  business  and  scientific  ability  of  large  num- 
bers of  private  citizens  who  responded  to  the  call  for  volunteers. 
Some  agencies  were  made  directly  responsible  to  the  Council, 
as  in  the  case  of  the  Committee  on  Coal  Production,  the 
General  Munitions  Board,  and  the  Section  on  Cooperation  with 
States;  while  other  committees  were  constituted  under  the  in- 
dividual members  of  the  Advisory  Commission.  Changes 
were  made  in  the  administrative  machinery  of  the  Couilcil  from 
time  to  time  as  experience  showed  the  means  of  attaining 
greater  efficiency,  and  new  bodies  were  created  to  perform  new 
functions.  At  the  same  time  a  number  of  agencies,  such  as  the 
War  Industries  Board,  which  were  originally  organized  as 
units  under  the  Council,  were  transferred  from  its  control  and 
made  independent  bodies  directly  responsible  to  the  Presi- 
dent.^ 

Functions  performed  by  the  Council.  It  is  important  to 
observe  that  the  functions  of  the  Council  were  strictly  advisory 
in  character,  and  that  its  subordinate  boards  and  committees 
possessed  no  administrative  power  to  carry  into  effect  the 
recommendations  made  by  them.  From  the  start  the  Council 
laid  stress  upon  its  *'  function  of  adjustment."  It  "  sought  to 
serve  as  a  channel  through  which  the  best  professional  and  in- 
dustrial intelligence  of  the  country  could  make  itself  most  ef- 

1  The  organization  and  personnel  of  the  Council  of  National  De- 
fense and  of  its  Advisory  Commission  and  of  the  subordinate  boards 
and  committees  may  be  found  in  the  appendices  to  the  First  and  Sec- 
ond Annual  Reports  of  the  Council. 


190      POLITICAL  SYSTEMS  IN  TRANSITION 

fectively  available  to  the  Government  departments."  It  re- 
cognized the  fact  that  the  war  was  *'  essentially  a  war  of  the 
mechanic  and  of  the  machine,"  and  that  the  "  direction  of  the 
machinery  of  American  industry  for  the  national  defense  neces- 
sarily involves  the  creation  of  an  organization  of  great  flexi- 
bility. .  .  .  Constantly  recurring  demands  for  increases  in 
personnel  and  for  new  efforts  in  unexpected  directions  have 
had  to  be  met  as  the  war  progressed.  It  has  been  the  effort  of 
the  organization  of  the  Council  of  National  Defense  to  hold 
itself  in  constant  readiness  to  meet  such  new  demands  and 
to  shift  its  ground  and  expand  its  facilities  in  the  interest  of 
the  national  service."  ^  In  the  Second  Annual  Report  the 
director  described  the  work  of  the  past  year  as  having  con- 
sisted in  "  drawing  together  immediately  the  country's  re- 
sources and  making  them  available  to  the  authorized  execu- 
tive agencies  of  the  Government,"  and  in  "  initiating  and  plan- 
ning the  organization  of  new  agencies  which  could  be  clothed 
as  need  demanded  with  the  requisite  power."  "  The  Council 
has  served,"  the  director  said,  "  as  a  great  administrative 
laboratory  through  which  new  plans  and  new  and  necessary- 
functions  could  be  initiated  and  developed,  and  where  effective 
action  demanded,  passed  on  to  permanent  or  emergency  agencies 
of  the  Government."  Cooperation  between  the  subordinate 
agencies  of  the  Council  in  the  formulation  of  policies  was  ob- 
tained in  some  measure  by  giving  representation  upon  the 
several  boards  to  members  of  other  boards,  and  thus  permitting 
a  general  discussion  of  common  objects. 

Criticism  of  the  work  of  the  Council.  Nevertheless,  in 
spite  of  the  elaborate  program  which  the  Council  mapped  out 
for  itself,  considerable  criticism  has  been  directed  against 
it,  and  against  its  auxiliary  Advisory  Commission,  from  vari- 
ous quarters  because  of  its  inability  to  act  as  the  coordinating 
agency  so  urgently  required  by  the  administrative  departments. 
Its   failures  have  been  summed  up  by  the   Director  of   the 

1  First  Annual  Report  of  the  Council  of  National  Defense,  for  the 
fiscal  year  ended  June  30,  1917.  P-  8. 


CHANGES  IN  GOVERNMENT  191 

Institute  for  Government  Research  under  the  following  head- 
ings: First,  the  Council  did  not  respond  to  its  opportunity 
as  a  body  to  formulate  general  plans  for  the  mobilization  of 
industry,  nor  did  it  even  formulate  a  consistent  program  for 
its  own  activities  by  attempting  to  define  the  jurisdiction  and 
duties  of  the  various  committees  and  subcommittees  which 
were  organized  under  it.  Secondly,  it  failed  properly  to  co- 
ordinate its  own  activities  with  those  of  the  Advisory  Com- 
mission, so  as  to  prevent  duplication  of  organization  and  func- 
tions. Thirdly,  the  Council  made  little  attempt  to  build  up 
a  strong  administrative  organization  manned  by  a  permanent 
personnel  of  experts.  Fourthly,  some  of  the  committees  failed 
to  remember  that  their  powers  were  of  an  investigatory  and 
advisory  character,  and  assumed  administrative  functions  which 
came  into  conflict  with  those  of  the  War  Department.  Lastly, 
the  mistake  was  made  of  making  the  committees  in  their  re- 
lations with  producers  agencies  for  representing  the  Govern- 
ment instead  of  agencies  for  the  representation  of  the  pro- 
ducers, with  the  result  that  in  a  number  of  cases  the  committees, 
being  composed  of  representative  producers,  had  to  recommend 
the  placing  of  contracts  with  their  own  members.  This  mistake 
was  in  due  time  appreciated,  and  the  committees  were  reor- 
ganized accordingly.^ 

Proposed  Ministry  of  Munitions.  It  is  doubtful  whether, 
even  had  the  Council  of  National  Defense  responded  fully  to 
the  demands  made  upon  it,  an  efficient  war  administration 
could  have  been  obtained.  For  the  task  thrown  upon  the  ad- 
ministrative department  was  not  merely  that  of  formulating  a 
general  program  of  operations,  but  of  distributing  the  duties 
thus  determined  upon  to  the  proper  departments,  and  of  bring- 
ing the  whole  series  of  functions  under  one  centralized  control. 
To  accomplish  this  three-fold  task  was  not  only  a  colossal 
undertaking  in  itself,  but  required  greater  powers  over  the  ad- 
ministration than  Congress  had  thus  far  conferred  upon  the 

1  W.  F.  Willoughby,  *'  Government  Organization  in  War  Time  and 
After,"  pp.  14-16. 


192       POLITICAL  SYSTEMS  IN  TRANSITION 

President.  The  war  had  not  been  in  progress  many  months 
when  it  became  clear  to  all  observers  that  the  wheels  of  the 
administrative  machinery  were  not  all  in  gear,  and  criticism 
both  in  the  public  press  and  in  Congress  demanded  that  steps 
be  taken  to  secure  greater  coordination  and  efficiency.  This 
demand  became  all  the  more  insistent  when  the  War  Depart- 
ment appeared  unable  to  secure  the  necessary  equipment  re- 
quired in  the  great  training  camps  scattered  throughout  the 
country.  Supplies  of  clothing  were  inadequate  and  arms 
could  only  be  supplied  to  those  actually  entraining  for  the 
front.  An  inquisitorial  examination  of  the  Secretary  of  War 
before  the  Senate  Committee  on  Military  Affairs  failed  to 
convince  that  body  that  satisfactory  progress  was  being  made. 
In  consequence  two  distinct  bills  were  brought  forward  by  the 
chairman  of  the  Committee,  one  providing  for  the  establish- 
ment of  a  new  Department  of  Munitions,  and  the  other  pro- 
viding for  the  creation  of  a  War  Cabinet.  The  proposed 
Department  or  Ministry  of  Munitions  was  intended  to  replace 
the  War  Industries  Board,  which  had  been  created  by  the 
Council  of  National  Defense,  but  which  lacked  the  administra- 
tive powers  necessary  to  carry  its  decisions  into  effect.  Its 
director  was  to  be  given  a  seat  in  the  Cabinet  and  to  be  en- 
trusted with  complete  control  over  supplies  of  every  kind 
for  the  army  and  the  navy.  The  President,  however,  opposed 
the  creation  of  a  new  department,  and  undertook  instead  to 
strengthen  the  position  of  the  War  Industries  Board  by  taking 
it  from  under  the  Council  of  National  Defense  and  making  it 
*'  a  separate  administrative  agency  "  to  act  for  him  and  under 
his  direction.* 

The  proposed  War  Cabinet.  The  proposal  for  the  creation 
of  the  War  Cabiiiet  was  urged  with  greater  insistency.  The 
Chamberlain  bill  provided  that  the  new  organ  of  control  should 
be  composed  of  "  three  distinguished  citizens  of  demonstrated 
ability  to  be  appointed  by  the  President,  by  and  with  the  advice 
and  consent  of  the  Senate,  through  which  War  Cabinet  the 

^  See  above,  p.  150. 


CHANGES  IN  GOVERNMENT  193 

President  may  exercise  such  of  the  powers  conferred  on  him 
by  the  Constitution  and  the  laws  of  the  United  States  as  are 
hereinafter  mentioned  and  described."  The  powers  of  the  War 
Cabinet  as  set  forth  in  the  bill  may  be  summarized  as  includ- 
ing the  power  to  supervise,  coordinate  and  control  the  func- 
tions and  activities  of  all  executive  departments,  officials  and 
agencies ;  to  obtain  information  from  and  to  utilize  the  services 
of  any  of  the  executive  departments  and  their  officers,  and  to 
issue,  subject  to  review  by  the  President,  the  orders  necessary 
to  make  their  decisions  effective.  The  War  Cabinet  would  thus 
have  become  a  small  directorate  with  practically  unlimited 
directive  powers,  but  with  small  administrative  powers.  Had 
it  actually  been  created,  whatever  may  be  thought  of  the  prob- 
abilities of  its  effective  operation,  it  would  undoubtedly  have 
come  into  conflict  with  the  constitutional  powers  of  the  Presi- 
dent as  commander-in-chief  of  the  army  and  navy.  At  the 
same  time  it  would  have  restricted  his  powers  as  chief  execu- 
tive, since  he  is  made  by  the  Constitution  ultimately  responsible 
for  the  execution  of  the  law  even  by  those  into  whose  hands 
Congress  may  have  expressly  entrusted  that  duty.  Again,  as 
in  the  case  of  the  Ministry  of  Munitions,  the  opposition  of  the 
President  and  the  substitution  of  an  alternative  proposal  led 
to  the  abandonment  of  the  bill. 

The  Overman  Act.  In  the  meantime,  while  the  above  plans 
were  being  debated  in  Congress,  the  chairman  of  the  Senate 
Committee  on  Rules,  Mr.  Overman,  at  the  request  of  the  Presi- 
dent introduced  a  bill  "  authorizing  the  President  to  coordi- 
nate and  consolidate  the  executive  bureaus,  agencies,  officers, 
and  for  other  purposes,  in  the  interest  of  economy  and  the 
more  effective  administration  of  the  Government."  The  act, 
as  finally  passed  on  May  14,  1918,  empowered  the  President 
to  make  such  "  redistribution  of  functions  "  among  the  execu- 
tive agencies  as  he  might  deem  necessary,  including  any  func- 
tions hitherto  by  law  conferred  upon  any  executive  depart- 
ment or  officer,  in  such  manner  as  in  his  judgment  should 
seem  best  fitted  to  carry  out  the  purposes  of  the  act,  and  to 


194      POLITICAL  SYSTEMS  IN  TRANSITION 

issue  the  necessary  regulations  and  orders.  Moreover,  it  em- 
powered the  President  to  coordinate  or  consolidate,  in  such 
manner  as  he  might  deem  most  appropriate,  any  executive  com- 
missions or  offices  then  existing,  and  to  transfer  the  duties  or 
powers,  as  well  as  the  personnel,  from  one  existing  depart- 
ment or  bureau  to  another.  By  the  terms  of  the  act  the  author- 
ity of  the  President  was  to  be  exercised  only  in  matters  re- 
lating to  the  conduct  of  the  war,  so  that  no  general  or  perman- 
ent reorganization  of  the  administrative  services  was  contem- 
plated. As  a  matter  of  fact,  by  the  time  of  the  passage  of 
the  act  most  of  the  serious  difficulties  of  the  war,  with  the 
exception  of  the  problems  connected  with  the  production  of 
aircraft,  had  been  more  or  less  satisfactorily  adjusted,  with  the 
result  that  the  President  did  not  feel  it  necessary  to  effect 
any  important  changes  in  the  organization  of  the  departments. 
Without  needing  any  special  authorization  of  Congress,  the 
Council  of  National  Defense  had  made  a  practice  of  holding 
weekly  meetings  which  the  heads  of  the  more  important  war 
agencies  were  invited  to  attend ;  while  on  his  part  the  President 
had  held  similar  weekly  meetings  with  the  same  officials,  which 
enabled  him  to  assist  in  the  coordination  of  their  respective 
functions.  What  was  needed,  in  the  estimation  of  many  ob- 
servers, was  a  body  which  could  at  once  "  plan  "  and  "  admin- 
ister." In  order  that  such  a  body  might  plan,  it  should  have 
been  free  from  the  burden  of  administrative  detail,  yet  not 
so  devoid  of  administrative  powers  as  to  be  unable  to  see 
that  its  plans  were  put  into  effect  precisely  as  devised.  The 
existing  Cabinet,  with  enlargements,  might  have  proved  such 
a  body,  had  the  powers  of  the  Overman  Act  been  granted 
to  the  President  at  the  time  of  the  creation  of  the  Council 
of  National  Defense. 

The  surrender  of  congressional  powers.  During  the  pas- 
sage of  the  Overman  bill  strong  opposition  was  manifested 
by  senators  who  felt  that  the  constitutional  powers  of  Congress 
were  being  abdicated  in  favor  of  the  President.  Liberal  as 
had  been  the  previous  grants  of  power  to  the  President,  they 


CHANGES  IN  GOVERNMENT  195 

were  in  form  at  least  the  expression  of  the  definite  will  of 
Congress,  which  had  decided  upon  the  policies  embodied  in 
the  law,  whatever  measure  of  freedom  might  be  accorded 
to  the  President  in  the  determination  of  the  means  by  which 
those  policies  were  to  be  carried  out.  To  Congress,  it  was 
argued,  belonged  the  constitutional  authority  to  "  raise  and 
support  armies,"  and  to  pass  all  laws  necessary  and  proper  to 
accomplish  that  purpose.  The  President  was  but  the  executive 
head  of  the  nation,  whose  duty  it  was  to  carry  out  the  policies 
decided  upon  by  Congress,  not  to  frame  them  himself.  The 
proposal  to  give  him  unlimited  power  to  reorganize  the  admin- 
istrative departments  was  to  create  an  autocracy  in  place  of  a 
democracy.  Curiously  enough,  the  opposition  expressed 
against  the  surrender  of  so  large  a  part  of  the  control  of  Con- 
gress over  the  administration  seemed  to  be  considerably  more 
determined  in  the  case  of  the  Overman  Act,  where  the  grant 
of  power  was  to  the  President  directly,  than  in  the  case  of 
the  proposed  War  Cabinet,  where  the  grant  of  power  was  to 
a  new  body,  a  sort  of  *'  super-cabinet "  unknown  to  the  Con- 
stitution. It  must  be  conceded  that  there  was  justice  in  the 
contention  of  certain  senators  that  it  was  the  part  of  Con- 
gress as  a  coordinate  branch  of  the  Government  to  map  out 
lines  of  action  and  to  consult  and  advise  with  the  President 
as  to  the  most  effective  measures  to  adopt.  But  on  the  other 
hand  Congress  had  not  given  any  exhibition  of  constructive 
statesmanship,  and  the  initiative  in  all  of  the  great  war  meas- 
ures previous  to  the  debates  on  the  War  Cabinet  had  been  taken 
by  the  Executive.  As  is  inevitable  under  any  form  of  govern- 
ment the  actual  control  tends  to  pass  to  that  department  which 
in  time  of  emergency  shows  itself  best  prepared  to  meet  the 
situation.  The  forms  of  constitutional  law  may  be  preserved, 
but  the  substance  of  power  will  be  exercised  by  the  persons 
who  are  recognized  as  most  capable  of  exercising  it.  In  this 
instance  the  general  public  was  but  little  disturbed  by  those 
members  of  the  Senate  who  protested  against  the  subordinate 
role  to  which  Congress  had  been  reduced. 


196      POLITICAL  SYSTEMS  IN  TRANSITION 

Lack  of  cooperation  between  Congress  and  the  Executive. ' 

The  passage  of  the  Overman  Act,  while  marking  perhaps 
the  most  striking  example  of  friction  between  Congress  and 
the  Executive,  does  not  stand  alone  as  an  instance  of  the 
lack  of  effective  cooperation  between  them.  Without  raising 
the  question  as  to  which  of  the  policies  at  issue  on  several 
occasions  was  the  wiser  to  follow,  the  fact  must  be  noted  th^t 
in  spite  of  the  imposing  array  of  powers  conferred  upon  the 
President  there  were  sharp  differences  between  the  two  co- 
ordinate branches  of  the  Government,  and  that  these  differences 
found  no  available  means  of  prompt  solution.  The  differences 
were,  in  truth,  inherent  in  the  very  nature  of  the  constitutional 
relations  between  the  two  departments,  and  it  is  fairer  to  place 
the  blame  for  them  as  much  upon  the  system  of  government 
as  upon  the  individual  parties  to  the  dispute.  The  Constitu- 
tion does  not  prevent  effective  team  work  between  the  Presi- 
dent and  Congress,  nor  on  the  other  hand  does  it  compel  it. 
Apart  from  his  limited  powers  as  commander-in-chief  of  the 
army  and  navy  the  President  is  but  the  constitutionally  ap- 
pointed agent  of  Congress,  which  must  pass  the  necessary  leg- 
islation before  he  can  act.  The  term  "  chief  executive,"  as 
applied  to  the  President  is  apt  to  mislead  the  ordinary  citizen 
into  supposing  that  certain  positive  powers,  common  to  execu- 
tive positions  in  business  organizations,  are  inherent  in  the 
office  of  the  President;  whereas  in  so  far  as  the  normal  activi- 
ties of  the  individual  citizen  and  of  national  industrial  enter- 
prises are  concerned  the  President  is  powerless  to  make  de- 
mands or  to  impose  restraints,  except  as  planned  for  him  by 
Congress  or  specifically  left  to  his  discretion  by  Congress.  If 
Congress  is  liberal  in  its  grants  of  power  to  the  President  in 
time  of  war,  both  as  regards  the  means  and  resources  required 
for  the  prosecution  of  the  w^ar  and  as  regards  full  liberty  in  the 
choice  of  auxiliary  agencies,  the  President  can  become  the 
head  of  as  unified  and  efficient  a  war  administration  as  it  is 
possible  for  the  wisdom  of  the  executive  department  to  de- 
vise.    The  value  of  the  centralization  of  executive  authority 


CHANGES  IN  GOVERNMENT  197 

provided  for  by  the  Constitution  may  then  be  experienced  to 
the  full.  On  the  other  hand  if  Congress  is  suspicious  of  the 
Executive,  if  it  delays  to  grant  him  the  necessary  sinews  of 
war,  if  it  restricts  him  in  the  use  of  administrative  agencies, 
the  alleged  advantages  of  a  "  one-man  executive  "  may  prove 
wholly  illusory.  The  question  whether  cooperation  shall  ex- 
ist depends,  therefore,  upon  the  statesmanship  of  the  two  co- 
ordinate bodies  of  the  Government.  The  state  of  "  constitu- 
tional unpreparedness,"  to  which  reference  has  previously  been 
madCj  in  which  the  United  States  found  itself  at  the  beginning 
of  the  war  by  reason  of  the  separation  of  the  powers  of  gov- 
ernment between  the  several  departments,  each  checking  and 
balancing  the  other,  was  not  an  absolute  barrier  to  success. 
It  merely  demanded  more  of  the  human  elements  in  command 
of  the  machinery  of  government  than  a  more  simplified  system, 
like  that  of  cabinet  government,  would  have  done. 

Position  of  the  President  as  political  leader.  No  mention 
has  been  made  of  the  influence  of  the  President  over  the 
affairs  of  the  country  in  his  role  of  pohtical  leader,  for  this 
is  a  matter  not  dependent  upon  the  will  of  Congress  but  based 
upon  the  position  which  the  President  may  by  right  assume 
in  virtue  of  his  constitutional  position  as  chief  executive.  The 
sources  of  this  influence  were  well  expressed  by  the  present 
incumbent  of  the  office  in  earlier  days :  "  The  nation  as  a 
whole  has  chosen  him  (the  President),  and  is  conscious  that 
it  has  no  other  political  spokesman.  His  is  the  only  national 
voice  in  affairs.  Let  him  once  win  the  admiration  and  con- 
fidence of  the  country,  and  no  other  single  force  can  with- 
stand him,  no  combination  of  forces  will  easily  overpower 
him.  .  .  .  If  he  rightly  interpret  the  national  thought  and 
boldly  insist  upon  it,  he  is  irresistible;  and  the  country  never 
feels  the  zest  of  action  so  much  as  when  its  President  is  of 
such  insight  and  character.  Its  instinct  is  for  unified  action, 
and  it  craves  a  single  leader."  ^  That  the  influence  of  the 
President  has  growm  greatly  in  recent  years  is  an  obvious  histor- 

1  "  Constitutional  Government  in  the  United  States,"  p,  68. 


lij'S      POLITICAL  SYSTEMS  IN  TRANSITION 

ical  fact,  and  there  have  not  been  wanting  voices  of  protest 
against  what  is  regarded  as  the  subjection  of  Congress  *'  to 
such  a  degree  of  executive  domination  as  to  threaten  the  stabil- 
ity of  the  principle  of  departmental  independence  involved  in 
the  distribution  of  the  several  powers  among  the  three  branches 
of  government."  ^  Senator  Sutherland  sees  a  tendency  on  the 
part  of  the  public  to  regard  the  President  as  a  superior  officer 
and  as  the  sole  repository  of  power,  rather  than  as  a  "  coequal 
member  of  a  tripartite  organization."  With  the  advent  of  war 
the  President  was  clothed,  he  says,  *'  with  the  role  of  a  virtual 
political  dictatorship."  *'  The  danger  of  such  a  situation," 
he  continues,  "is  that  Congress  will  be  driven  from  its  tradi- 
tional and  constitutional  place  in  public  thought,  as  a  coordinate 
branch  of  the  Government,  with  the  unfortunate  result  that 
subordination  and  obedience  will  tend  to  replace  common  coun- 
sel and  team  work."  ^ 

Personal  responsibility  assumed  by  President  Wilson. 
That  the  burden  thrown  upon  the  office  of  the  President  dur- 
ing the  war  appeared  at  times  to  be  too  heavy  for  any  single 
man  to  carry  was  the  result  not  so  much  of  the  centralization 
of  power  in  the  hands  of  one  man,  as  of  the  unwillingness 
of  the  President,  in  the  opinion  of  certain  observers,  to  dele- 
gate his  authority  to  his  subordinates.  If  the  President  chose 
to  reserve  to  himself  the  final  decision  on  a  wide  variety  of 
controversies  among  the  multifarious  boards  and  commissions 
of  the  administration,  it  was  not  from  any  constitutional  obli- 
gation to  assume  such  duties,  but  from  his  personal  beHef  that 
such  a  centralization  of  authority  was  the  more  advisable  course 
to  pursue.  At  the  outbreak  of  the  war  there  was  no  organiza- 
tion upon  which  the  President  could  unload  the  responsibilities 
of  his  office,  and  the  task  of  creating  such  an  organization 
.would  have  been  one  of  exceptional  difficulty.  Nevertheless 
it  was  thought  by  many  that  some  such  delegation  of  author- 
ity should  have  been  attempted.     One  plan  proposed  would 

1  G.  Sutherland,  '*  Constitutional  Power  and  World  Affairs."  p.  75- 

2  Ibid.,  p.  76. 


CHANGES  IN  GOVERNMENT  199 

have  shifted  to  a  subordinate  war  council  the  power,  subject 
to  certain  broad  lines  of  policy  adopted  in  consultation  with 
the  President,  to  determine  upon  plans  for  the  prosecution  of 
the  war,  and  to  entrust  the  execution  of  those  plans  to  an 
executive  board  which  should  represent  the  heads  of  the 
branches  of  the  administration  performing  functions  connected 
with  the  war  in  its  industrial  as  well  as  in  its  military  and 
naval  aspects.  An  analysis  by  diagram  of  the  various  boards, 
commissions,  and  individual  directors  and  administrators  in 
their  relations  to  the  President  would  give  us  a  huge  wheel,  at 
the  hub  of  which  would  be  the  President  in  his  capacity  as 
creator,  by  congressional  authority,  of  the  branches  of  the  ad- 
ministrative machinery  and  as  ultimate  coordinator  of  their 
functions  and  umpire  of  their  conflicts;  whereas  it  was  con- 
tended that  the  proper  and  efficient  relationship  between  the 
President  and  the  ramifications  of  his  war  administration  should 
have  been  that  of  general  superintendent  and  director  of  pol- 
icies, with  power  distributed  to  his  subordinates  through  suc- 
cessive delegations  of  authority.  The  subject  was  freely  dis- 
cussed in  Congress  and  in  the  public  press,  but  no  constructive 
plan,  satisfactory  to  the  President,  could  be  agreed  upon. 

Impediments  resulting  from  the  committee  system  in 
Congress.  The  failure  of  the  two  houses  of  Congress  to  co- 
operate with  each  other,  as  well  as  with  the  Executive,  in  the 
expedition  of  public  business  was  due  to  the  constitutional  im- 
pediment of  a  bi-cameral  legislature,  but  the  degree  of  the 
failure  was  increased  greatly  by  the  organization  of  the  two 
houses,  for  which  political  tradition  and  not  the  Constitution 
was  responsible.  Legislation  in  both  houses  is  accomplished 
through  the  agency  of  committees,  to  which  all  proposed  meas- 
ures are  referred;  and  the  report  of  these  committees  upon  a 
bill  is  generally  decisive  in  determining  its  fate.  By  a  rule  of 
long  standing  the  chairmanship  of  the  committees  falls  to  mem- 
bers not  primarily  upon  the  basis  of  qualifications  possessed 
by  them  for  the  work,  but  upon  the  ground  of  length  of  service 
in  Congress.     The  result  is  that  while  the  chairman  of  the  com- 


200       POLITICAL  SYSTEMS  IN  TRANSITION 

mittees  generally  represent  their  party  on  questions  of  domestic 
politics,  which  have  been  an  issue  in  elections,  it  is  quite  possi- 
ble that  in  the  event  of  a  new  issue  arising,  such  as  the  action 
to  be  taken  by  the  United  States  in  answer  to  the  renewal  of 
submarine  warfare  by  Germany,  the  chairmen  of  the  commit- 
tees may  not  represent  the  majority  either  of  the  house  as  a 
whole  or  even  of  their  own  political  party.  By  an  unfortunate 
coincidence  the  outbreak  of  the  war  found  the  heads  of  a  num- 
ber of  the  most  important  committees  sharply  divided  as  to  the 
policies  to  be  pursued.  The  Chairman  of  the  Foreign  Relations 
Committee  of  the  Senate  was  strongly  opposed  to  the  declara- 
tion of  war,  while  the  chairman  of  the  House  Committee  was 
equally  strongly  in  favor  of  it.  The  chairman  of  the  House 
Committee  on  Military  Affairs  was  opposed  to  any  plan  of  con- 
scription for  the  army,  whereas  the  chairman  of  the  same  com- 
mittee in  the  Senate  was  strongly  in  favor  of  that  method  of 
raising  troops.  The  chairman  of  the  Committee  on  Ways  and 
Means  of  the  House  of  Representatives  voted  against  a  declara- 
tion of  war  on  the  ground  that  it  did  not  involve  either  the 
moral  or  the  material  interests  of  the  country,  while  the  chair- 
man of  the  Senate  Finance  Committee  held  the  opposite  opinion. 
The  result  was  that  whatever  the  desire  of  the  majority  of 
both  houses  to  expedite  the  passage  of  the  necessary  war 
measures,  delays  were  experienced  in  pressing  the  committees 
in  charge  to  take  prompt  action  upon  them. 

The  system  of  control  through  licences.  Tin  addition  to  the 
problems  connected  with  the  reorganization  of  the  administra- 
tive departments  mention  must  be  made  here  of  two  important 
devices  resorted  to  by  the  Government  to  obtain  control  over 
certain  private  industries  and  to  secure  the  performance  of 
certain  services  which  it  was  desirable  should  retain  the  char- 
acter of  private  enterprise J.'^  We  have  seen  above  that  the 
Government  issued  licences  to  persons  engaged  in  import  and 
export  business,  to  food  dealers,  mine  operators,  and  producers 
and  dealers  in  fuel  oil.  The  advantages  of  this  system  of 
licences  were  that  it  enabled  the  Government  to  fix  for  each 


CHANGES  IN  GOVERNMENT  201 

industry  separately  the  conditions  to  be  met  by  persons  desir- 
ing to  engage  in  it  or  already  engaged  in  it,  and  to  enforce 
the  observance  of  those  coiaditions  by  threatening  to  withdraw 
the  licence  of  a  given  producer  who  refused  to  abide  by  the 
regulations  imposed.  The  regulations  could  thus  be  drawn  up 
and  enforced  by  administrative  officials  without  the  necessity 
of  having  them  take  the  more  rigid  form  of  laws,  and  without 
giving  rise  to  a  right  of  appeal  to  the  courts  by  persons  ac- 
cused of  violating  them.  The  prediction  has  been  made  that 
the  manifest  advantages  attending  this  method  of  control  during 
the  war  will  cause  it  to  be  resorted  to  by  the  Government  when 
called  upon  to  bring  industrial  interests  under  greater  control.^ 
Control  through  subsidiary  corporations.  The  second  of 
these  devices  consisted  in  the  establishment  of  subsidiary  cor- 
porations for  the  performance  of  certain  specific  activities. 
The  work  of  several  of  these  corporations  has  already  been 
referred  to  in  connection  with  the  new  power  entrusted  by 
Congress  to  the  executive  department.  Their  advantages  as 
administrative  agencies  are  described  as  consisting  in  the  definite 
segregation  of  the  particular  service,  both  financially  and  ad- 
ministratively, from  all  other  services,  so  that  the  particular 
enterprise  will  have  its  own  property,  its  own  revenues  and 
expenditures,  and  its  own  accounting  and  reporting  system. 
An  enterprise  producing  revenue  should  have  a  system  of  profit 
and  loss  accounts  similar  to  that  of  the  ordinary  private  corpor- 
ation, and  for  this  purpose  it  should  have  financial  autonomy. 
Moreover  the  corporate  form  of  organization  facilitates  the 
handling  of  contractual  relations  with  outside  parties  to 
better  advantage;  it  admits  of  the  appointment  of  a  board  of 
directors  chosen  with  special  reference  to  their  technical  com- 
petence ;  and  it  keeps  the  service  on  a  purely  business  basis 
outside  the  pressure  of  partisan  politics.^     The  interest  attach- 

^  W.  F.  Willoughby,  "  Government  Organization  in  War  Time  and 
After,"  p.  355. 

2  Ibid.,  p.  356.  The  subject  is  treated  in  greater  detail  in  Chap.  V  of 
the  "  Problem  of  a  National  Budget,"  by  the  same  author. 


202       POLITICAL  SYSTEMS  IN  TRANSITION 

ing  to  this  form  of  administrative  agency  is  not  merely  due 
to  its  unusual  character,  but  to  the  probability  of  its  future  use 
by  the  Government  in  the  handling  of  industrial  problems.  At 
the  present  moment,  for  example,  there  is  before  Congress  a 
plan  advanced  by  the  Railway  Brotherhoods  and  endorsed  by 
the  American  Federation  of  Labor,  which  proposes  that  the  rail- 
ways of  the  country  be  purchased  by  the  Government  and  their 
operation  be  entrusted  to  a  private  corporation,  run  by  the  em- 
ployees, which  is  to  pay  the  Government  a  rental  out  of  the 
receipts  of  operation.^ 

1  A  convenient  reference  manual  of  the  agencies  created  during  the 
war  for  the  administration  of  the  varied  activities  of  the  Government 
may  be  found  in  "  A  Handbook  of  the  Economic  Agencies  of  the  War 
of  1917,"  prepared  in  the  Historical  Branch,  War  Plans  Division  of 
the  General  Staff  iQigi 


CHAPTER  IX 

THE   SEPARATE   STATE   GOVERNMENTS.      NEW    LEGISLATION 
AND    NEW    ADMINISTRATIVE   ACTIVITIES 

The  relation  of  the  separate  state  governments  to  the 
war.  The  burden  of  conducting  the  war  fell  naturally 
upon  the  Federal  Government,  for  to  it  was  confided  by  the 
Constitution  the  task  of  raising  and  supporting  armies  and  its 
chief  executive  was  constitutional  commander-in-chief.  In  a 
war  of  smaller  dimensions,  such  as  that  with  Spain  in  1898, 
it  might  well  have  been  possible  for  the  separate  state  govern- 
ments to  remain  entirely  unaffected  by  the  conflict,  and  to  do 
no  more  than  acquiesce  in  such  limited  war  measures  of  the 
Federal  Government  as  the  incorporation  of  their  state  militia 
into  the  federal  forces.  But  the  recent  war,  in  calling  for  the 
mobilization  of  the  man  power  and  the  industrial  resources  of 
the  entire  nation,  left  no  corner  of  the  country's  life  untouched, 
and  the  state  governments  necessarily  felt  the  pressure  of  its 
demands.  In  the  first  place  the  state  governments  were  called 
upon  to  yield  to  the  encroachments  upon  their  authority  and 
jurisdiction  involved  in  the  assumption  by  the  Federal  Govern- 
ment of  the  wide  range  of  powers  which  have  been  described 
in  the  preceding  chapter.  In  the  second  place  the  exceptional 
demands  created  by  the  war  led  the  state  legislatures  to  enter 
new  fields  of  legislation  in  order  to  supplement  the  measures 
taken  by  the  Federal  Government  and  to  meet  more  satis- 
factorily the  special  local  conditions  which  were  beyond  the 
reach  of  the  federal  laws.  In  the  third  place  the  necessity  of 
securing  cooperation  between  the  separate  executive  depart- 
ments of  the  state  governments,  and  between  the  state  execu- 
tives as  a  body  and  the  federal  executive  department,  led  to  the 
establishment  of  new  and  more  intimate  relations  between  these 
distinct  agencies  of  government,  and  tended  to  break  down  the 

203 


204       POLITICAL  SYSTEMS  IN  TRANSITION 

barriers  of  isolation  which  have  long  been  a  characteristic  of 
American  local  government.  In  many  instances  the  Federal 
Government  found  it  convenient  to  fall  back  upon  the  govern- 
mental machinery  of  the  States  for  the  enforcement  of  new 
regulations  hitherto  not  within  the  scope  of  the  activities  of 
the  central  government. 

Subordination  of  state  authority  to  federal.  Jurisdiction 
over  persons.  The  dividing  line  between  the  powers  of  the 
central  government  and  those  of  the  separate  states,  as  estab- 
lished by  the  Constitution,  has  never  been  entirely  clear,  but 
during  the  course  of  decades  of  constitutional  interpretation  by 
the  courts  a  fairly  satisfactory  basis  for  the  adjustment  of  dis- 
putes of  jurisdiction  has  been  worked  out.  Where  state  and 
federal  jurisdiction  overlap  the  practical  rule  has  been  adopted 
that  the  State  may  enact  legislation  valid  within  its  borders 
until  Congress  decides  to  enter  the  field,  when  the  local  laws 
must  give  way  to  the  national  law  in  so  far  as  the  former 
are  inconsistent  with  the  latter.  In  many  cases,  as  in  that  of 
the  Food  and  Drugs  Act  of  1906,  the  federal  legislation  may 
in  no  way  conflict  with  state  legislation,  or  may  either  supple- 
ment it,  where  the  state  legislation  is  less  comprehensive  than 
the  federal  law,  by  restricting  importations  from  other  states, 
or,  where  the  reverse  is  the  case,  merely  assist  in  the  enforce- 
ment of  the  state  law  against  importations  from  other  states. 
In  normal  times  few  controversies  have  arisen  except  those  in 
connection  with  the  power  of  Congress  over  commerce  between 
the  States,  but  there  has  been  on  the  whole  a  steady  increase 
in  the  scope  of  the  authority  of  the  Federal  Government.  With 
the  outbreak  of  the  war  the  States  found  themselves  obliged 
to  surrender  a  far  wider  range  of  jurisdiction  than  had  ever 
been  demanded  of  them  at  any  time  in  the  past  history  of  the 
country.  The  powers  assumed  by  the  President  as  commander- 
in-chief  of  the  army  and  navy  intruded  upon  the  civil  and 
criminal  jurisdiction  of  the  state  courts;  while  cantonments 
were  built  in  a  number  of  the  States  and  formed  as  it  were 
federal  cities,  not  unlike  the  District  of  Columbia,  which  re- 


THE  SEPARATE  STATE  GOVERNMENTS      205 

mained  outside  the  control  of  the  State.  The  troops  in  train- 
ing in  these  camps  continued  to  remain  subject  to  the  jurisdic- 
tion of  the  Federal  Government  even  when  visiting  neighboring 
cities  on  leave  of  absence,  and  special  military  police  patrolled 
the  railway  stations  and  other  centers  of  city  life.  In  certain 
cases,  as  we  have  seen,  the  authority  of  the  War  and  Navy 
Departments  was  extended  even  to  the  point  of  demanding  of 
a  city  that  it  reform  its  government  and  suppress  immoral  con- 
ditions which  were  a  danger  to  the  health  and  morale  of  the 
federal  troops  temporarily  present  in  the  city.  Moreover,  in 
the  interest  of  protecting  the  material  welfare  of  the  men  drawn 
into  the  federal  army,  Congress  undertook  to  interfere  with 
the  normal  operation  of  legal  procedure  in  the  States,  and  to 
suspend  the  judgments  of  state  courts  in  cases  where  the  fail- 
ure of  the  defendant  to  appear  in  court  to  answer  to  a  suit 
was  due  to  his  being  in  the  military  service  of  the  United 
States.  The  process  of  eviction  for  failure  of  the  family  of 
a  soldier  to  pay  rent  was  suspended,  and  installment  contracts 
were  subjected  to  special  limitations  in  favor  of  the  party  in 
military  service.  In  these  and  other  ways  the  normal  jurisdic- 
tion of  the  State  over  all  persons  within  its  borders  was  seri- 
ously restricted. 

Loss  of  state  control  over  railroads.  The  extension  of 
federal  control  over  the  railway  systems  of  the  country  neces- 
sitated the  surrender  by  the  States  of  their  power  of  control 
over  transportation  within  the  State  in  so  far  as  such  trans- 
portation formed  a  necessary  link  in  the  chain  of  commerce 
between  the  States.  Here  it  is  of  interest  to  note  that  the 
dual  system  of  government  in  the  United  States  has  resulted 
in  a  form  of  divided  control  over  the  railways  which  has  been 
at  once  a  source  of  embarrassment  to  the  railways  themselves 
and  an  obstacle  to  efficient  regulation  in  the  interest  of  the 
public.  The  Interstate  Commerce  Commission  has  long  sought 
to  reconcile  the  conflicting  jurisdictions  of  the  Federal  Govern- 
ment and  of  the  several  States,  and  the  railroads  have  freely 
asserted  their  desire  for  centralized  control  in  preference  to 


2o6       POLITICAL  SYSTEMS  IN  TRANSITION 

the  rule  of  their  "  forty-nine  masters,"  the  individual  state 
railway  commissions  added  to  the  federal  commission.  With 
the  assumption  of  federal  control  over  the  railways  in  Decem- 
ber 191 7,  the  state  railway  commissions  retired  temporarily 
from  business,  and  special  state  laws  regulating  rates  and  service 
within  the  states  were  suspended  in  their  operation  pending  the 
return  of  the  railways  to  their  former  owners.  The  federal 
railway  director  general  was  thus  given  the  opportunity  not  only 
to  prove  the  economic  advantages  of  a  unified  system  as  against 
isolated  competing  lines,  but  at  the  same  time  to  demonstrate 
the  administrative  advantages  of  a  single  centralized  control  as 
against  the  former  combination  of  federal  and  state  control. 
In  like  manner  the  control  assumed  by  the  Federal  Govern- 
ment over  the  telegraph  and  telephone  lines  necessitated  the 
abandonment  of  the  power  of  the  state  public  service  com- 
missions over  those  services  within  the  state  borders,  and  re- 
duced the  functions  of  the  latter  bodies  to  the  regulation  of 
local  public  utilities.^ 

Encroachments  of  the  Food  and  Fuel  Control  Act.  The 
price-fixing  powers  of  the  federal  Food  and  Fuel  Control  Act 
invaded  the  domain  of  state  legislation  at  numerous  points. 
In  normal  times  the  determination  of  a  maximum  price  for 
wheat  would  have  been  within  the  competence  of  the  several 
state  legislatures  alone,  and  could  not  even  have  been  indirectly 
undertaken  by  the  Federal  Government  through  its  power  over 
interstate  commerce.  The  licencing  of  food  dealers  by  the 
Food  Administration  and  the  penally  imposed  of  withdrawing 
the  licence  for  failure  to  comply  with  the  regulations  prescribed 

1  In  two  instances  the  power  of  Congress  to  exercise  exclusive  juris- 
diction over  the  railroads  and  telegraphs  was  contested  by  state  public 
utilities  commissions  which  sought  to  enjoin  the  companies  in  question 
from  enforcing  rates  diflferent  from  those  already  established.  The 
Supreme  Court  held  that  the  action  of  the  Federal  Government  was  a 
legitimate  exercise  of  the  war  power  and  that  a  State  had  no  right  to 
interfere  with  its  measures  of  control.  Northern  Pacific  Railway  v. 
North  Dakota,  250  U.  S.,  135;  Dakota  Central  Telegraph  Company  v. 
South  Dakota,  250  U.  S.,  163. 


THE  SEPARATE  STATE  GOVERNMENTS      207 

constituted  an  assumption  of  combined  legislative  and  executive 
functions  which,  but  for  their  exceptional  justification  as  war 
measures,  would  have  been  strictly  within  the  jurisdiction  of 
the  state  governments.  Similarly,  the  fixing  of  prices  for 
various  grades  of  coal,  the  restrictions  placed  upon  the  use  of 
foal  for  purposes  not  deemed  essential  by  the  Fuel  Administra- 
iion,  the  decree  that  non-essential  factories  be  closed  on  Mon- 
days during  a  critical  period,  and  the  qualified  compulsion  exer- 
cised in  the  form  of  withdrawing  supplies  altogether,  were 
all  acts  normally  within  the  sphere  of  government  reserved 
to  the  several  States.  The  same  is  to  be  said  of  the  allotment 
of  the  raw  materials  of  industry  among  producers  according 
to  the  character  of  the  industry,  and  the  determining  of  prior- 
ities in  respect  to  inland  transportation  and  shipping.  Some 
of  these  acts  were,  of  course,  beyond  even  the  power  of  the 
state  legislatures  to  prescribe  without  a  previous  amendment 
to  the  state  constitution  authorizing  the  assumption  of  such 
control  over  private  industry.  It  was  the  urgent  necessity  of 
the  situation  which  not  only  led  public  opinion  to  acquiesce  in 
the  subordination  of  state  interests  to  national  interests,  but 
secured  its  assent  to  the  invasion  of  those  private  rights  of  the 
individual  citizen  which  it  is  one  of  the  characteristic  func- 
tions of  an  American  state  constitution  to  protect.  The  strik- 
ing nature  of  the  invasion  of  the  domain  of  state  legislation  by 
the  war  measures  of  the  Federal  Government  may  be  seen  in 
the  fact  that  in  the  opening  months  of  the  war  the  Supreme 
Court  of  the  United  States  rendered  a  decision  nullifying  the 
Federal  Child  Labor  Law  as  being  an  unconstitutional  exten- 
sion of  the  powers  of  the  Federal  Government  over  interstate 
commerce  into  the  reserved  sphere  of  state  government,  while 
at  the  same  time  Congress  and  the  President,  in  the  exercise 
of  "  war  powers,"  were  setting  up  machinery  of  control  a 
hundredfold  more  comprehensive  in  its  encroachments  upon 
normal  state  life. 

Federal    prohibition    legislation    and    the    States.     One 
further  war  measure  of  the  Federal  Government  which  caused 


2o8       POLITICAL  SYSTEMS  IN  TRANSITION 

a  serious  conflict  with  the  normal  rights  of  the  state  govern- 
ments, and  which  led  to  complications  of  jurisdiction  that  are 
still  ^  being  felt,  was  the  enactment  by  Congress  of  legislation 
restricting  the  manufacture  and  sale  of  intoxicating  liquors. 
The  Food  and  Fuel  Control  Act  carried  with  it  a  rider  pro- 
hibiting the  use  of  food  materials  in  the  production  of  dis- 
tilled liquors  and  at  the  same  time  authorizing  the  President 
to  apply  at  his  discretion  the  same  restrictions  to  the  production 
of  beers  and  wines.  This  measure  was  followed  by  a  more 
drastic  provision,  annexed  as  a  rider  to  the  Food  Stimulation 
Act  of  November  21,  191 8,  which  forbade  the  use  of  food- 
stuffs in  the  production  of  beer,  wine,  or  other  "  intoxicating  " 
malt  or  vinous  liquors  after  May  i,  1919,  and  until  the  end 
of  demobilization,  and  the  sale  of  such  liquors  after  June  30, 
1919,  and  until  the  end  of  demobilization.  This  provision, 
known  as  the  War-time  Prohibition  Art,  was  in  every  respect 
a  prohibition  and  not  a  food  conservation  measure,  and  was, 
as  we  have  seen  above,  an  attempt  to  force  upon  the  States 
which  had  not  adopted  prohibition  laws  a  temporary  regime 
of  prohibition  pending  the  ratification  of  the  amendment  to  the 
Federal  Constitution.  Congress,  however,  failed  to  define  the 
scope  of  the  word  **  intoxicating,"  with  the  result  that  dealers 
in  the  ''  wet "  States  were  at  first  at  a  loss  to  know  what  per- 
centage of  alcohol  rendered  a  beverage  intoxicating,  and  they 
finally  obtained  different  rulings  on  the  subject  from  their  re- 
spective state  governments.  Evasions  of  the  law  were  numer- 
ous, owing  to  the  fact  that  no  adequate  machinery  for  the  en- 
forcement of  the  law  had  been  provided  by  Congress,  and  the 
officials  of  the  "wet"  States  were  naturally  somewhat  indif- 
ferent to  the  observance  of  a  law  which  they  believed  to  be 
in  fact,  if  not  in  law,  a  contravention  of  the  constitutional 
rights  of  the  States.  The  subsecjuent  passage  by  Congress  of 
the  Volstead  or  National  Prohibition  Act  of  October  28,  1919, 
settled  the  question  of  the  alcoholic  content  of  intoxicating 
liquors.     While  declaring  the  act  constitutional  the  Supreme 

1  October,  1919- 


THE  SEPARATE  STATE  GOVERNMENTS      209 

Court,  however,  dismissed  the  suits  brought  by  the  Government 
against  the  dealers  who,  prior  to  the  passage  of  the  act,  had 
manufactured  and  sold  beers  and  wines  with  a  larger  percentage 
of  alcohol  than  that  laid  down  in  the  act  as  constituting  an  in- 
toxicating liquor.^ 

Enlarged  scope  of  state  activities.  But  if  the  war  had  the 
effect  of  restricting  the  sphere  of  the  normal  jurisdiction  of 
the  States,  it  at  the  same  time  led  the  States  to  enlarge  the 
range  of  their  local  activities  and  to  enter  new  fields  of 
legislation  hitherto  closed  to  them.  These  new  activities  of 
the  state  governments  were  partly  the  result  of  a  desire  to 
cooperate  with  the  Federal  Government  in  the  enforcement  of 
laws  and  regulations  for  which  the  machinery  of  the  Federal 
Government  was  inadequate,  and  partly  the  result  of  a  de- 
mand on  the  part  of  the  public  for  a  greater  measure  of  pro- 
tection against  domestic  violence  and  against  economic  op- 
pression arising  out  of  the  exceptional  conditions  created  by 
the  war.  It  has  been  pointed  out  above  that  the  dividing  line 
between  the  powers  reserved  to  the  state  governments  by  the 
Constitution  and  those  delegated  to  the  Federal  Government 
is  not  at  all  points  a  clear  one,  but  that  satisfactory  adjust- 
ments have  been  worked  out  by  the  courts  to  answer  the  diffi- 
culties that  have  from  time  to  time  arisen.  The  abnormal 
conditions  which  grew  out  of  the  war  not  only  threw  these 
older  adjustments  out  of  balance,  but  called  for  new 
adjustments  to  meet  the  new  situations.  The  result  was 
that  the  "  constitutional  unpreparedness  "  of  American  democ- 
racy manifested  itself  quite  as  much  in  the  difficulty  experienced 
by  the  parts  of  the  federal  state  in  cooperating  efficiently  with 
the  central  government,  as  in  the  failure  of  the  people  at  large, 
by  reason  of  being  unaccustomed  to  discipline,  to  respond  im- 
mediately to  the  demands  made  upon  them.  The  latter  fail- 
ure was,  as  we  have  seen,  in  a  large  measure  made  good  in 

1  United  States  v.  Standard  Brewery,  decided  January  s,  1920.  For 
the  constitutionality  of  the  War-time  Prohibition  Act  and  the  Na- 
tional Prohibition  Act,  see  above,  pp.  154-157. 


2IO      POLITICAL  SYSTEMS  IN  TRANSITION 

time,  and  voluntary  agencies  were  created  to  do  J:he  work 
which  an  autocratic  government  might  have  done  through  com- 
pulsory agencies.  The  difficulty  experienced  by  a  decentral- 
ized form  of  government  was  likewise  overcome  in  time  but 
to  a  less  satisfactory  degree,  owing  not  so  much  to  the  lack 
of  a  desire  on  the  part  of  the  States  to  cooperate  with  the 
Federal  Government,  as  to  the  obstacles  inherent  in  the  ex- 
istence of  isolated  state  units.  Each  of  the  forty-eight  state 
constitutions  contained  a  variety  of  restrictions  upon  the  powers 
of  the  state  legislature  and  embodied  its  own  conception  of 
the  limits  to  which  the  state  government  might  go  in  restrict- 
ing the  freedom  of  its  citizens.  At  the  same  time  the  state 
legislatures  did  not  possess  the  sweeping  grant  of  power  con- 
tained in  the  clause  of  the  Federal  Constitution  empowering 
Congress  *'  to  raise  and  support  armies." 

Organization  of  Reserve  Militia  and  State  Constabularies. 
In  order  to  meet  the  emergency  caused  by  the  transfer  of  the 
state  militia  into  the  national  army  many  States  found  it  neces- 
sary to  create  special  reserve  forces  for  the  maintenance  of  law 
and  order  at  critical  times.  These  bodies  were  known  as  Home 
Guards,  State  Guards  (by  contrast  with  the  National  Guard 
or  former  state  militia),  State  Defense  Guards,  State  Reserve 
Militia.  They  were  as  a  rule  recruited  by  voluntary  enlist- 
ment, and  varied  in  number  in  the  different  States.  In  Mary- 
land provision  was  made  that  if  the  number  of  volunteers  was 
inadequate,  male  cfitizens  might  be  drafted  to  the  number  re- 
quired. The  duties  of  these  home  guards  were  generally  con- 
fined to  calls  for  emergency  service  in  cases  where  the  local 
police  force  was  inadequate  to  preserve  the  peace,  but  in  some 
States  they  were  assigned  the  wider  functions  of  enforcing 
the  laws  of  the  State.  The  same  circumstances,  however, 
which  called  for  the  creation  of  the  reserve  militia  gave  an 
impetus  to  the  movement  already  in  progress  of  establishing 
permanent  state  constabulary  forces,  or  "  militar}^  police,"  to 
act  as  a  flying  corps  at  the  disposal  of  the  governor  for  the 
enforcement  of  the  law.     Pennsylvania  had  led  the  way  in 


THE  SEPARATE  STATE  GOVERNMENTS       211 

1906  by  the  creation  of  such  a  body,  modeled  on  the  Canadian 
northwestern  mounted  police,  and  consisting  of  four  troops 
of  fifty  men  each.  In  19 17  New  York,  South  Dakota,  Rhode 
Island,  Connecticut,  and  other  States  established  similar  bodies, 
and  in  1918  Oregon  followed  suit ;  while  New  Jersey  failed 
to  secure  popular  assent  to  a  bill  submitted  to  a  referendum. 
Texas  organized  a  Rangers'  Home  Guard  of  1000  men  to  pro- 
tect its  border  against  raids  from  Mexico.  In  States  where 
there  is  no  such  constabulary  force  the  governor  is  obliged 
to  rely  for  the  enforcement  of  the  law  upon  the  local  sheriffs 
and  constables  in  the  rural  districts  and  upon  the  municipal 
police  in  the  cities.  Only  in  the  event  of  a  riot  or  of  organized 
resistance  to  the  law  is  it  feasible  to  call  out  the  state  militia, 
and  in  many  instances  the  delays  incident  to  drawing  civilians 
from  their  ordinary  pursuits  have  had  serious  results.  The 
existence  of  a  professional  state  guard,  although  small  in  num- 
ber, would  make  it  possible  for  the  governor  to  suppress  dis- 
turbances in  their  incipient  stages.^  In  addition  to  creating 
these  state  guards,  some  States  authorized  their  cities  to  ap- 
point special  emergency  police  and  provided  for  the  formation 
of  county  guards  and  volunteer  fire  companies. 

State  aid  in  the  administration  of  the  Selective  Service 
Act.  The  adoption  of  the  Selective  Service  Act  was  the  most 
dramatic  and  at  the  same  time  the  most  far-reaching  measure 
taken  by  the  Federal  Government  for  the  successful  prosecu- 
tion of  the  war.  Yet  it  was  a  measure  for  which  the  existing 
machinery  of  the  Federal  Government  was  completely  inade- 

1  The  opposition  to  the  creation  of  State  constabulary  forces  has 
come  chiefly  from  the  labor  unions,  which  fear  that  the  troops  will  be 
used  to  interfere  with  strikes  by  preventing  picketing  and  breaking 
up  meetings  of  the  workers;  whereas  local  police  and  the  unpro- 
fessional state  militia  may  be  expected  to  show  greater  sympathy 
with  the  strikers  and  to  act  with  less  determination.  The  recent  ex- 
periences of  the  steel  strikers  in  Pennsylvania  have  tended  to  justify 
this  attitude.  The  answer  should  be,  not  the  abolition  of  the  State 
constabulary,  but  the  enactment  of  legislation  to  replace  the  present  ar- 
bitrary practice  of  the  courts  in  issuing  injunctions  in  labor  disputes. 


212       POLITICAL  SYSTEMS  IN  TRANSITION 

qiiate,  and  which  must  therefore  have  caused  great  confusion 
in  its  enforcement  and  great  injustice  to  individuals  had  it  not 
been  possible  for  the  Federal  Government  to  call  upon  the  as- 
sistance of  the  state  authorities  and  their  subordinate  local 
agencies.  The  administration  of  the  draft  was,  in  accordance 
with  the  terms  of  the  act,  carried  out  by  means  of  a  large  num- 
ber of  draft  boards,  one  in  each  county  or  *'  similar  subdivision  " 
in  each  state,  and  one  for  approximately  each  30,000  of  popula- 
tion in  each  city  of  30,000  or  over.  The  act  provided  that 
the  boards  should  be  appointed  by  the  President,  and  should 
consist  of  three  or  more  members,  none  of  whom  should  be 
connected  with  the  military  establishment,  to  be  chosen  "  from 
among  the  local  authorities  of  such  subdivisions  or  from  other 
citizens  residing  "  therein.  The  object  of  this  provision  was 
obviously  to  secure  men  who  were  familiar  with  local  conditions, 
and  who  would  either  know  personally  the  circumstances  of  the 
cases  that  came  before  them  or  else  be  in  a  position  to  obtain 
first-hand  knowledge  from  others.  Since  the  boards  were  com- 
posed in  many  cases  of  political  leaders,  there  were  from  time 
to  time  charges  of  favoritism  in  respect  to  exemptions  from 
service  where  pressure  could  be  brought  by  influential  persons. 
In  a  few  instances  legal  proceedings  were  brought  against  in- 
dividual members  of  the  boards ;  but  in  comparison  with  the 
immense  volume  of  work  performed  by  the  boards  these 
isolated  charges  are  a  striking  testimony  to  the  general  fair- 
ness with  which  their  rulings  were  made.  Owing  to  differences 
of  temper  and  of  judgment  in  the  membership  of  the  various 
boards  it  was  inevitable  that  exemptions  should  be  granted  in 
one  locality  and  refused  on  the  same  grounds  in  another.  The 
circumstances  calling  for  exemption  were  infinite  in  variety, 
and  it  was  in  the  nature  of  things  impossible  to  apply  in  a 
hard  and  fast  manner  the  instructions  sent  out  by  the  office 
of  Provost  Alarshal  General  E.  H.  Crowder,  who  was  in  charge 
of  the  entire  draft  system.  In  a  large  measure  the  divergencies 
of  the  local  boards  were  rectified  by  the  district  boards  of  ap- 
peal which  were  appointed  by  the  President  in  each  federal 


THE  SEPARATE  STATE  GOVERNMENTS       213 

judicial  district.  These  district  boards  were  authorized  by 
the  act  to  "  review  on  appeal  and  affirm,  modify,  or  reverse 
any  decision  of  any  local  board  "  having  jurisdiction  within 
the  district,  and  to  hear  cases  not  included  in  the  jurisdiction 
of  the  local  boards.  Their  decisions  were  final,  subject  only 
to  the  right  of  the  President  to  permit  an  appeal.  It  should 
be  noted  that  the  appointments  of  the  President  were  made 
in  accordance  with  recommendations  of  the  state  governors, 
so  that  the  fullest  cooperation  between  the  national  and  the 
state  governments  was  thereby  obtained.^ 

Miscellaneous  laws  in  aid  of  men  in  service.  As  an  item 
in  a  general  program  of  preparedness  military  instruction  had 
been  provided  for  in  several  States  even  before  the  declaration 
of  war,  while  other  States  hastened  to  adopt  a  similar  program 
for  the  succeeding  school  year.  These  measures  were  later 
supplemented  by  the  action  of  the  War  Department  in  estab- 
lishing units  of  a  Students'  Army  Training  Corps  in  all  of 
the  colleges  and  universities  which  had  a  minimum  enrollment 
of  over  one  hundred  students  above  high  school  grade.  The 
students  joining  this  corps  became  active  members  of  the  army 
on  active  duty  and  subject  to  military  discipline.  Their  hous- 
ing, subsistence  and  instruction  were  provided  for  by  the 
several  institutions  under  contract  with  the  Government. 
Several  States  enacted  laws  providing  for  temporary  financial 
relief  for  the  families  of  enlisted  or  drafted  men  in  cases  of 
need.  In  New  York  State  the  legislature  authorized  cities, 
counties,  and  villages  to  provide  financial  aid  for  the  families 
of  enlisted  men ;  in  Maine  the  families  of  volunteers  were  sup- 
ported partly  by  state  aid  and  partly  by  aid  from  the  county 
or  city  of  their  residence;  while  Vermont  paid  state  pensions 
to  the  dependents  of   members  of  the  national  guard.     The 

1  For  further  details  of  the  work  of  the  local  and  district  boards,  see 
the  Second  Annual  Report  of  the  Provost  Marshal  to  the  Secretary  of 
War,  pp.  268,  276.  A  valuable  survey  of  the  administration  of  the 
Selective  Service  Act  may  be  found  in  "The  Spirit  of  Selective  Ser- 
vice," by  Maj.  Gen.  E.  H.  Crowder. 


214      POLITICAL  SYSTEMS  IN  TRANSITION 

passage  of  the  federal  War  Risk  Insurance  Act,  with  its  al- 
lotment and  allowance  provisions,  removed  the  necessity  for 
state  aid  to  a  large  degree,  and  probably  explains  the  failure  of 
the  States  as  a  body  to  pass  remedial  legislation.  Several 
States  in  which  the  sale  of  intoxicating  liquors  was  still  legal 
passed  laws  forbidding  the  sale  of  liquor  near  military  camps. 
In  Maryland  provision  was  made  for  a  dry  zone  within  two 
miles  of  any  camp,  and  special  police  were  appointed  to  patrol 
it.  A  few  States  anticipated  the  moratory  and  stay  law  of 
Congress  by  their  own  moratory  and  stay  laws,  in  accordance 
with  which  suits  begun  against  enlisted  men  during  the  war 
were  suspended  until  six  months  after  the  war,  and  debts  owing 
by  them  could  not  be  collected  during  the  continuance  of  the 
war.  In  several  States  special  measures  were  taken  to  assist 
men  absent  in  military  service.  In  North  Carolina  Soldiers' 
Business  Aid  Committees  were  appointed  by  the  county  councils 
to  render  help  in  the  management  of  their  business  affairs ; 
while  in  Wisconsin  the  state  council  proposed  that  there  should 
be  appointed  a  "  home  soldier  "  to  watch  over  the  interests  of 
each  soldier  in  service  abroad  and  to  be  in  general  his  per- 
sonal representative.  In  a  number  of  the  States  steps  were 
taken  in  the  form  of  constitutional  amendments  and  legisla- 
tive enactments  to  permit  absent  voting  of  men  in  military 
service.  Application  was  made  by  the  state  officers  to  the 
Adjutant-General  to  have  the  vote  taken  in  the  camps,  per- 
mission being  granted  when  it  did  not  cause  serious  interference 
with  military  efficiency. 

Laws  in  aid  of  food  and  fuel  conservation.  We  have 
seen  above  that  the  Food  Survey  Act  and  the  Food  and  Fuel 
Control  Act  laid  the  basis  of  a  national  policy  of  food  and  fuel 
conservation,  and  that  federal  agencies  were  created  to  secure 
its  enforcement.  But  in  this  instance,  as  in  many  of  its  other 
war  measures,  the  Federal  Government  was  unable  to  accom- 
plish more  than  half  its  purposes  by  its  own  direct  enactments. 
I-ack  of  administrative  machinery,  as  well  as  past  traditions  of 
more  restricted  functions,  made  it  impossible  for  the  Government 


THE  SEPARATE  STATE  GOVERNMENTS      215 

to  do  more  than  frame  regulations  which  could  be  enforced  uni- 
formly throughout  the  country  without  undue  friction.  Will- 
ing as  the  people  of  the  States  might  be  to  cooperate  with  the 
Federal  Government,  it  was  politically  inexpedient  for  Con- 
gress to  subject  them  to  general  federal  laws  which  might  be 
unsuited  to  their  particular  local  needs.  In  consequence  the 
state  governments  found  it  necessary  to  pass  local  laws  supple- 
menting the  federal  law.  These  laws  were  of  the  widest 
variety  and  in  one  State  or  another  dealt  with  the  increase 
of  production  of  farm  crops,  the  marketing  of  farm  products, 
the  prohibition  of  storing  or  hoarding  foodstuffs  so  as  to  cor- 
ner the  market  and  enhance  the  price,  the  establishment  of 
municipal  markets  for  the  purchase  and  distribution  of  food 
supplies,  the  adoption  of  cooperative  agricultural  projects,  and 
the  prohibition  of  conspiracies  to  limit  the  output  or  control 
the  price  of  coal.  In  addition  to  these  and  other  measures 
valid  only  within  their  several  state  boundaries,  the  state 
governments  rendered  valuable  assistance  to  the  Federal  Gov- 
ernment in  the  administration  of  the  federal  law.  The  federal 
food  administrator  announced  at  the  outset  of  the  undertaking 
that  the  administration  could  only  be  carried  out  through  the 
coordination  of  existing  legitimate  agencies  and  through  the 
services  of  volunteer  workers.  In  the  selection  of  these 
agencies  and  of  the  local  food  administrators,  as  well  as  in  the 
enforcement  of  the  regulations  adopted,  the  cooperation  of 
the  state  governments  made  it  possible  to  carry  through  a  most 
elaborate  program  with  the  least  possible  friction  and  a  mini- 
mum of  expense. 

Laws  to  meet  labor  problems.  We  have  seen  the  meas- 
ures taken  by  the  Federal  Government  to  mobilize  the  labor 
required  for  munition  works  and  other  war  industries,  as  well 
as  the  variety  of  mediation  and  arbitration  commissions  created 
to  adjust  labor  disputes  and  prevent  the  recurrence  of  strikes. 
But  while  the  measures  of  the  Federal  Government  were 
limited  in  their  scope  to  the  problem  of  labor  in  essential  war 
work,  a  number  of  the  individual  States  took  drastic  measures 


2i6      POLITICAL  SYSTEMS  IN  TRANSITION 

to  remedy  the  general  shortage  of  labor  due  to  the  operation  of 
the  draft  law  and  to  the  rush  of  labor  to  the  more  highly  paid 
war  industries.     Maryland,   West   Virginia,   and   Kansas  led 
the  way  in  1917  with  "  work  or  fight "  laws,  and  a  number 
of  other  States  followed  suit  in  1918.     The  Maryland  law  re- 
quired the  registration  of  able-bodied  men  between  eighteen 
and  fifty  years  of  age  who  were  not  usefully  employed,  and 
authorized  the  governor  to  assign  them  to  some  public  or  private 
employment ;   failure  to   register  or  to  do  the  work  assigned 
was  punished  by  fine  or  imprisonment ;  no  exception  was  made 
between   rich  and  poor,  but   students  and  strikers  were  ex- 
cepted.    The  West  Virginia  law  made  each  week  of  idleness  a 
separate  offense.     The   Kansas  law   defined  vagrancy  to   in- 
clude refusal  to  accept  employment.     The  Kentucky  law  re- 
jected the  plea  of  inability  to  obtain  work  as  a  defense,  but 
other   states   recognized  the  possibility   of   inability   to   secure 
employment  and  merely  required,  as  in  New  York  and  Mas- 
sachusetts, that  persons  should  apply  to  a   designated  public 
agency  to  secure  employment.     South  Dakota  granted  to  the 
state  Council  of  Defense  the  power  to  *'  impress  "  into  public 
or  private  service  all  unemployed  persons.     Nebraska  reached 
the  same  object  by  defining  sedition  to  include  habitual  idle- 
ness or  refusal  to  accept  obtainable  work.     Distinct  in  purpose 
from  the  above  legislation  relating  to  compulsory  work  were 
the  laws,  such  as  that  of  Vermont,  which  suspended  the  opera- 
tion of  the  existing  statutes  relating  to  hours  of  employment  of 
women  and  children  during  the  continuance  of  the  war.     These 
laws  were  severely  criticised  by  persons  interested  in  social 
reform  as  being  likely  to  result  in  harm  to  the  women  and 
children  which  would  more  than  counterbalance  the  increased 
supply  of  labor.     In  several  States  provision  was  made  that 
children  might  be  released  from  attendance  at  school  without 
loss  of  standing  if  they  were  engaged  in  farm  work. 

Laws  to  assist  in  Americanizing  immigrants.  The  out- 
break of  the  war  found  among  the  citizen  body  of  the  L^nited 
States  many  millions  of  unnaturalized  foreigners  upon  whose 


THE  SEPARATE  STATE  GOVERNMENTS       217 

allegiance  the  United  States  had  no  legal  claim.  Many  more 
persons  of  foreign  birth  had  been  naturalized  during  a  longer 
or  shorter  number  of  years,  but  had  never  been  won  over  to  a 
feeling  of  affection  for  the  institutions  of  the  country  or  to 
a  sense  of  the  obligations  of  citizenship.  The  presence  of  a 
large  number  of  these  persons  in  the  training  camps  and  the 
high  percentage  of  illiteracy  among  them  drew  public  atten- 
tion to  the  urgent  necessity  of  taking  steps  to  bring  the  for- 
eign-born population,  numbering  some  thirteen  millions,  into 
closer  touch  with  American  ideals  and  American  political  insti- 
tutions. In  consequence  the  Council  of  National  Defense  an- 
nounced in  December,  19 17,  a  national  program  of  Americani- 
zation, and  called  upon  the  state  Councils  of  Defense  to  as- 
sist in  putting  it  into  effect.  The  States  were  urged  to  pass 
legislation  requiring  the  attendance  of  non-English-speaking 
and  illiterate  persons  between  sixteen  and  twenty-one  years  of 
age  at  some  school  or  other  educational  agency  under  public 
supervision.  Communities  in  which  there  was  a  large  propor- 
tion of  immigrants  were  urged  to  establish  factory  classes  and 
night  schools  for  their  education,  and  stress  was  laid  upon 
the  training  of  special  teachers  and  the  coordination  of  im- 
migrant education  under  a  state  supervisor.  In  response  to 
this  appeal  a  large  number  of  the  States  organized  state  com- 
mittees on  Americanization  and  prepared  elaborate  programs 
of  educational  facilities  to  be  offered.  New  York  established 
a  teachers'  training  institute  and  formulated  plans  for  instruc- 
tion in  industrial  plants.  California  was  not  content  to  carry 
on  the  work  of  education  in  the  schools,  but  by  the  passage  of 
a  Home  Teacher  Act  provided  for  bringing  instruction  in 
English  and  civics,  sanitation  and  other  subjects  into  the  homes 
of  the  immigrants.  Arizona  passed  a  law  providing  that  in 
any  school  district  where  fifteen  or  more  persons  resided  who 
were  unable  to  read,  write,  or  speak  English  and  who  wished 
to  attend  night  school,  the  board  of  trustees  should  establish 
such  a  school,  in  which  not  only  the  language  but  "  American 
ideals  and  an  understanding  of  American  institutions  "  should 


2i8      POLITICAL  SYSTEMS  IN  TRANSITION 

be  taught.  In  April,  1918,  an  Americanization  conference  was 
held  in  Washington  which  was  attended  by  governors  and  their 
representatives  from  twenty-two  States,  together  with  other 
state  officers  and  educators.  Legislation  was  recommended 
providing  for  a  national  program  of  Americanization,  and  a 
committee  was  appointed  to  urge  Congress  to  take  action.^ 

State  espionage  and  sedition  laws.  The  Espionage  Act  and 
its  amendment,  the  Sedition  Act,  passed  by  Congress  in  June, 
1917,  and  in  May,  1918,  attempted,  as  we  have  seen,  first  to 
prevent  interference  with  the  draft  law,  and  secondly  to  check 
utterances  or  publications  of  a  treasonable  or  seditious  char- 
acter. These  measures  were  supplemented  in  a  number  of 
the  States  by  special  legislation  looking  to  the  enforcement 
of  the  federal  law,  whether  by  making  the  same  act  an  offense 
against  state  law  as  well,  or  by  extending  the  scope  of  the 
prohibition  so  as  to  cover  conditions  peculiar  to  the  individual 
state.  Illinois  and  Minnesota,  for  example,  made  it  a  mis- 
demeanor to  interfere  with  or  discourage  men  from  enlisting 
in  the  military  or  naval  service  of  the  United  States.  Wis- 
consin and  New  Jersey  penalized  the  act  of  advising  any  per- 
son in  the  State  who  was  of  military  age  not  to  enlist.  Iowa 
made  it  a  felony  to  excite  sedition  or  insurrection  or  to  ad- 
vocate the  subversion  or  destruction  of  the  Federal  or  state 
Government  by  force,  and  made  it  a  misdemeanor  to  be  a  mem- 
ber of  or  to  attend  a  meeting  or  council  of  any  treasonable 
organization,  society  or  order.  New  Jersey  made  similar  con- 
duct a  "  high  misdemeanor."  Texas  punished  the  uttering  or 
publishing  of  seditious  language,  which  was  defined  as  that 

1  Sec  the  "  American  Year  Book,"  19 18,  p.  797-799-  The  subject  is 
treated  in  detail  in  the  volume  on  "  The  War  and  the  Alien "  in  the 
present  series. 

On  January  16,  1920,  the  Senate  began  discussion  of  the  Kenyon 
Americanization  bill,  the  object  of  which  is  to  combat  radical  ideas 
by  means  of  education  instead  of  repression.  The  bill  proposes  to 
enlist  the  cooperation  of  the  States  with  the  Federal  Government  by 
teaching  English  to  immigrants  and  by  giving  them  a  knowledge  of 
the  spirit  and  purpose  of  American  institutions. 


THE  SEPARATE  STATE  GOVERNMENTS       219 

which  was  disloyal,  abusive,  or  calculated  to  bring  into  dis- 
repute the  United  States,  its  military  forces  or  flag,  or  its  entry 
or  continuance  in  the  war.  Abuse  of  the  flag  was  penalized 
in  a  number  of  the  States,  in  some  instances  by  the  enact- 
ment of  new  laws  and  in  others  by  the  amendment  of  existing 
laws. 

Laws  to  assist  in  controlling  enemy  sympathizers.  A 
number  of  the  States  undertook  to  pass  special  legislation  look- 
ing to  assist  the  Federal  Government  in  keeping  a  closer  control 
over  enemy  aliens  and  others  whose  sympathies  might  be  on  the 
side  of  the  enemy.  Iowa,  New  York,  Connecticut,  Florida, 
Maine,  and  other  States  supplemented  the  federal  registration 
law  by  requiring  enemy  aliens  to  register  upon  notice  by  the 
governor  and  requiring  hotels  and  boarding  houses  to  report 
alien  guests  and  subsequent  arrivals  and  departures  of  aliens. 
A  Massachusetts  "  True  Name  "  hotel  law,  not  aimed  directly 
against  the  alien,  but  doubtless  having  the  alien  chiefly  in 
mind,  provided  that  landlords  of  hotels  and  lodging  houses 
must  keep  a  register  in  which  every  person  who  rented  a  room 
must  write  his  true  name  and  place  of  residence  and  the  true 
name  and  residence  of  every  other  occupant  of  the  room ;  both 
landlord  and  occupant  being  subject  to  a  fine  for  failure  to  com- 
ply with  the  law.  Vermont  penalized  heavily  the  possession  of 
military  maps  and  plans,  the  furnishing  of  military  informa- 
tion and  the  injuring  of  public  property,  providing  that  if  the 
offense  were  committed  under  circumstances  amounting  to 
treason,  the  punishment  should  be  for  the  latter  crime.  Min- 
nesota prohibited  enemy  aliens  from  having  firearms,  explo- 
sives or  the  ingredients  of  explosives  in  their  possession,  or 
to  hunt,  capture,  or  kill  any  game  except  in  self-defense. 
Maine  enacted  special  regulations  concerning  the  storing  and 
sale  of  dynamite,  powder,  and  other  explosives.  New  York 
authorized  the  attorney-general  to  conduct  secret  investiga- 
tions to  ascertain  the  loyalty  of  persons  under  suspicion,  and 
at  the  same  time  authorized  the  governor  to  suspend  the  right 
to  fish,  boat,  or  cut  ice  on  any  lake,  reservoir,  or  other  lands 


220       POLITICAL  SYSTEMS  IN  TRANSITION 

or  waters  owned  or  controlled  by  the  city  of  New  York.  Illi- 
nois, Maine,  Maryland,  Rhode  Island,  Vermont  and  other 
States  enacted  criminal  legislation  covering  the  act  of  destroy- 
ing or  molesting  munition  plants,  armories,  gas,  electric,  tele- 
graph and  telephone  plants,  sources  of  food  or  water  supply, 
bridges,  railways,  and  other  works  necessary  to  the  successful 
prosecution  of  the  war. 

Laws  directed  against  syndicalists  and  other  radical 
groups.  Special  legislation  was  passed  in  a  number  of  the 
states  to  place  a  check  upon  the  activities  of  members  of  the 
I.  W.  W.  and  other  radical  organizations,  whose  political  and 
economic  doctrines  led  them  not  only  to  oppose  the  war,  ir- 
respective of  their  nationality,  but  to  adopt  means  of  the  most 
subtle  character  to  hinder  its  prosecution.  Sabotage  has  long 
been  one  of  the  recognized  means  by  which  these  organizations 
have  sought  to  obstruct  and  ultimately  overthrow  the  existing 
private  ownership  of  the  instruments  of  production.  The 
favorable  conditions  created  by  the  war  for  the  practice  of  this 
form  of  "  direct  action  "  made  it  necessary  for  the  States  in 
which  these  radical  groups  were  numerous  to  take  steps  to 
thwart  their  secret  methods.  Several  of  the  northwestern 
States  defined  criminal  syndicalism  as  the  doctrine  advocating 
sabotage,  crime,  vjolence  or  terrorism  as  a  means  of  accomplish- 
ing industrial  reform,  Idaho  specially  mentioning  the  act  of 
placing  or  inserting  rocks  or  metallic  substances  in  saw  logs. 
Montana  penalized  the  owner  of  a  building  who  knowingly 
permitted  a  criminal  syndicalist  meeting  to  be  held  upon  the 
premises.  North  Dakota  defined  "  sabotage  in  the  first  de- 
gree "  as  including  setting  on  fire  food  for  man  or  beast  or 
buildings  where  food  was  stored  or  poisoning  work  or  food 
producing  animals  in  order  to  hinder  the  owner's  food  produc- 
ing operations.  **  Sabotage  in  the  second  degree,"  to  which 
a  lesser  penalty  was  attached,  included  the  attempt  to  commit 
sabotage  in  the  first  degree,  as  well  as  the  hindering  of  harvest- 
ing or  threshing  crops  by  injury  to  machinery  by  placing  for- 
eign substances  in  the  grain  to  be  harvested  or  threshed.     South 


THE  SEPARATE  STATE  GOVERNMENTS      221 

Dakota  specified  the  criminal  use  of  any  liquid,  chemical, 
mechanical  apparatus,  current  or  other  device  in  the  destruc- 
tion or  attempt  to  destroy  life  or  property/ 

State  Councils  of  Defense.  Owing  to  the  subordinate  part 
played  by  the  States  in  the  prosecution  of  the  war  it  was  not 
found  necessary  to  introduce  any  important  changes  into  the 
organization  of  their  governments.  There  were  no  "  war 
powers  "  to  be  assumed  by  the  state  governors,  and  no  such 
burdens  were  thrown  upon  them  as  to  require  the  passage  of 
state  legislation  similar  to  the  provisions  of  the  Overman 
Act.  One  important  modification  was,  however,  introduced 
into  the  organization  of  the  state  governments  by  the  creation  of 
the  State  Councils  of  Defense.  Upon  the  outbreak  of  the  war 
the  Council  of  National  Defense,  which,  as  we  have  seen,  had 
been  created  by  Congress  to  coordinate  the  industries  and  re- 
sources of  the  country  for  the  national  defense,  established  a  de- 
partment to  coordinate  the  defense  activities  of  the  several 
States.  This  department  subsequently  developed  into  the  Sec- 
tion on  Cooperation  with  States.  The  aim  of  this  body  was  to 
act  as  a  clearing  house  in  which  the  appeal  for  guidance  from 
the  various  associations  engaged  in  war  work  in  the  States  could 
be  met  by  the  suggestion  of  a  uniform  general  policy,  while 
preserving  the  principle  of  decentralization  in  the  actual  duties 
performed.  On  April  9,  191 7,  the  Secretary  of  War  issued 
a  request  to  the  state  governors  that  state  councils  should 
be  created  to  cooperate  with  the  national  council  in  Washing- 
ton. Some  weeks  later,  at  the  invitation  of  the  chairman  of  the 
national  council,  a  conference  of  the  States,  consisting  of  gov- 
ernors and  representatives  appointed  by  them,  met  in  Wash- 
ington to  draw  up  plans  of  coordination  between  the  central 
body  and  the  separate  state  units.     Two  months  later  every 

1  As  in  the  case  of  the  federal  Espionage  and  Sedition  laws  the  after- 
math of  this  war-time  legislation  has  been  the  proposal  of  a  number  of 
bills  directed  towards  suppressing  the  advocacy  of  radical  methods  of 
bringing  about  a  change  in  the  Government.  The  most  conspicuous 
of  these  measures  have  been  the  Lusk  bills,  passed  by  the  New  York 
legislature,  but  vetoed  by  the  Governor. 


222      POLITICAL  SYSTEMS  IN  TRANSITION 

State  had  organized  its  own  council  of  defense.  At  the  same 
time  the  process  of  administrative  decentralization  was  car- 
ried still  further  by  the  creation  in  each  State  of  county  coun- 
cils with  subordinate  municipal  and  community  councils.  The 
smallest  unit  of  the  system,  the  community  council,  was  the 
community  itself  organized  for  service  in  local  areas  such  as 
the  school  district  or  in  some  States,  the  township.  These  local 
councils  became  the  final  link  between  the  Federal  Government 
and  the  individual  citizen. 

Composition  and  powers  of  the  state  councils.  In  a  num- 
ber of  States  where  the  state  legislatures  were  in  session,  the 
state  councils  were  established  by  a  formal  legislative  act, 
and  appropriations  were  made  to  enable  them  to  carry  on  the 
activities  mapped  out  for  them.  In  other  cases  the  councils 
were  established  by  decree  of  the  state  governor  and  be- 
came personal  agencies  attached  to  the  executive  department. 
In  the  number  of  their  members  the  councils  varied  from  half 
a  dozen  to  more  than  a  hundred  appointees.  In  some  cases 
they  were  composed,  like  the  Council  of  National  Defense,  of 
ex-officio  state  officers  with  the  governor  as  chairman;  but 
more  often  their  membership  was  drawn  from  among  the  prom- 
inent business  and  professional  men  of  the  State,  who  served 
without  pay  and  without  definite  tenure  of  office.  Their 
powers,  while  of  the  same  general  character  in  the  different 
States,  varied  widely  in  extent.  Most  of  the  councils  were 
limited  to  advisory  functions.  They  were  called  upon,  as  in 
the  case  of  the  California  council,  to  make  investigations  into 
the  effect  of  the  war  upon  the  civil  and  economic  life  of  the 
people,  to  recommend  to  the  governor  measures  to  provide  for 
the  public  security,  the  protection  of  the  public  health,  and  the 
development  of  the  economic  resources  of  the  State.  But  in 
a  smaller  number  of  the  States  the  councils  were  given  ex- 
tremely wide  powers,  extending  in  West  Virginia  to  the  regula- 
tion of  mines,  factories  and  railroads,  the  fixing  of  prices,  and 
the  suppression  of  disorder;  in  Wisconsin  to  the  control  of 
food  and  fuel  supplies ;  and  in  Minnesota  to  the  protection  of 


THE  SEPARATE  STATE  GOVERNMENTS      223 

life,  liberty,  and  property,  by  the  adoption  of  broad  measures 
not  inconsistent  with  the  law. 

Work  of  the  State  Councils  Section  of  the  Council  of  Na- 
tional Defense.  The  policy  pursued  by  the  State  Councils 
Section  (formerly  the  Section  on  Cooperation  with  States) 
of  the  Council  of  National  Defense  was  to  transmit  to  the 
state  councils  requests  for  assistance  in  various  matters,  leav- 
ing it  to  each  state  council  to  develop  the  means  of  providing 
this  assistance  in  the  light  of  its  intimate  knowledge  of  local 
conditions.  Requests  for  direction  and  offers  of  assistance 
from  any  individual  or  association  within  the  State  were  re- 
ferred by  the  central  body  to  the  state  council.  Moreover, 
the  central  body  endeavored  to  have  the  departments  and  war 
administrations  of  the  Federal  Government  conduct  through  the 
state  councils  of  defense  all  activities  in  the  several  States 
suited  to  the  decentralized  character  of  the  state  council  sys- 
tem. At  the  same  time  the  State  Councils  Section  acted  as  an 
informal  supervising  agency  to  correlate  the  activities  of  the 
state  councils  and  to  take  the  initiative  in  mapping  out  new 
lines  of  work.  Through  its  directive  influence  many  valuable 
suggestions  bearing  upon  all  phases  of  war  work,  such  as  the 
care  of  the  dependents  of  men  in  military  service,  the  conserva- 
tion of  food,  the  maintenance  of  proper  labor  standards,  and  the 
treatment  of  foreign-born  citizens,  were  transmitted  to  every 
part  of  the  country,  and  it  was  thus  possible  to  carry  out  ef- 
fectively national  policies  with  the  aid  of  local  machinery.  On 
the  whole  the  work  of  the  state  councils  of  defense,  under  the 
guidance  of  a  centralizing  body,  furnishes  an  admirable  ex- 
ample of  the  possibility  of  attaining  in  time  of  great  emergency 
that  cooperation  between  the  States  and  the  National  Govern- 
ment the  lack  of  which  has  been  one  of  the  weakest  features 
of  American  Federal  Government.  Whether  it  is  possible  to 
secure  a  similar  cooperation  in  time  of  peace  for  other  objects 
in  which  national  unity  is  desirable  without  sacrifice  of  local 
autonomy  is  a  problem  for  the  present  age  of  reconstruction. 

Conferences  of  State  Governors.     In  connection  with  the 


224      POLITICAL  SYSTEMS  IN  TRANSITION 

necessity  created  by  the  war  of  securing  a  fuller  measure  of 
cooperation  between  the  separate  States  and  the  Federal  Gov- 
ernment, attention  must  be  called  to  an  institution  already  in 
existence  known  as  the  "  Governors'  Conference."  In  1908 
President  Roosevelt  called  a  Conference  of  Governors  at  the 
White  House  in  the  interest  of  securing  their  cooperation  in 
the  conservation  of  the  national  resources  of  the  country.  This 
meeting  proved  to  be  a  first  step  in  the  organization  of  a  perma- 
nent institution  which  promised  to  have  important  effects  in  the 
development  of  closer  relations  between  the  separate  state 
governments.  Provision  was  made  for  the  call  of  periodic 
meetings,  and  a  second  conference  met  in  Washington  in  19 10. 
Thereafter  annual  conferences  met  to  discuss  what  might  be 
called  local  matters  of  general  interest  to  all  the  states  individ- 
ually, in  contradistinction  to  the  national  matters  of  interest  to 
the  people  collectively,  which  fall,  subject  to  the  limitations  of 
the  Constitution,  within  the  jurisdiction  of  the  Federal  Govern- 
ment. The  Governors'  Conferences,  however,  disappointed  the 
promise  of  their  formation,  and  failed  to  meet  adequately  the 
need  of  that  more  immediate  bond  of  unity  between  the  Slates 
than  was  created  by  the  Federal  Government.^  On  the  out- 
break of  the  war  several  special  conferences  of  the  state  gov- 
ernors were  called.  Governors  of  the  New  England  States 
met  at  Boston,  and  those  of  the  Middle  Atlantic  States  met  at 
Philadelphia,  to  devise  plans  for  putting  their  States  upon  a 
war  footing.  Governors  of  the  coal-producing  States  met  at 
Chicago  to  consider  ways  of  meeting  the  shortage  of  the  coal 
supply.  At  the  same  time  a  special  conference  of  the  States 
was  called  to  which  every  State  in  the  Union  sent  representa- 
tives, among  whom  were  a  number  of  state  governors.     The 

iThis  failure  has  been  set  down  "partly  to  the  short  terms  of 
most  governors  and  the  consequent  changing  of  membership  of  the 
Conference  and  lack  of  sustained  interest  in  the  proceedings,  partly 
to  the  social  and  unbusiness-like  character  of  the  poorly  attended 
meetings,  but  more  particularly  to  the  lack  of  the  proper  sort  of  a 
permanent  and  efficient  organization."  J.  M.  Mathews,  "  Principles 
of  American  State  Administration,"  p.  132. 


THE  SEPARATE  STATE  GOVERNMENTS      225 

part  played  by  this  conference  in  the  organization  of  state  coun- 
cils of  defense  has  already  been  referred  to.  Because  of  the 
plans  drawn  up  at  these  special  conferences,  and  particularly 
because  of  the  bond  of  unity  created  by  the  formation  of  the 
state  councils  of  defense,  it  was  thought  unnecessary  to  hold 
the  annual  conference  in  1917;  but  in  December,  1918,  the  con- 
ference again  assembled  and  devoted  its  sessions  to  problems  of 
reconstruction,  while  a  special  conference  was^  called  in  March, 
1919,  at  the  invitation  of  the  Secretary  of  Labor,  at  which  the 
special  problem  of  restoring  the  labor  conditions  of  the  coun- 
try to  a  normal  basis  was  considered. 

Duplication  of  effort  by  Federal  and  state  governments. 
It  will  be  observed  that  while  some  of  the  laws  passed  by 
the  separate  state  legislatures  helpfully  supplemented  the 
federal  laws  upon  the  same  subject,  many  of  them  were  mere 
duplications  of  the  federal  laws  and  accomplished  no  other 
purpose  than  to  place  the  administrative  machinery  of  the  State 
in  motion  for  the  enforcement  of  the  federal  law  in  cases  where 
the  federal  agents  might  have  been  unable  to  cover  the  ground. 
The  question  may  perhaps  be  raised  whether  greater  efficiency 
would  not  have  been  secured,  and  the  large  expenditures  of  the 
States  and  the  consequent  burden  of  taxation  would  not  have 
been  spared,  had  the  Federal  Government  been  able  to  assume 
complete  control  of  the  situation  and  had  the  state  governments 
forborne  passing  war  legislation  of  any  kind.  As  a  theoretical 
proposition  the  question  may  be  answered  in  the  affirmative; 
but  considering  that  there  were  practical  as  well  as  constitu- 
tional obstacles  to  any  such  centralization  of  authority,  some 
compensations  were  to  be  found  in  the  existing  conditions, 
In  the  first  place  there  is  no  doubt  that  the  state  governments 
were  in  a  better  position  to  meet  the  conditions  of  their  particu- 
lar section  of  the  country  than  the  Federal  Government  would 
have  been  able  to  meet  them  by  the  enactment  of  general  laws 
binding  all  parts  of  the  country  alike.  Again,  it  is  possible  that 
the  enactment  of  state  laws,  even  though  closely  duplicating 
the  federal  laws,  reconciled  the  population  of  the  States  to 


226      POLITICAL  SYSTEMS  IN  TRANSITION 

the  conditions  imposed  far  more  readily  than  would  have  been 
the  case  had  the  federal  law  alone  been  in  force.  The  strong 
tradition  still  persisting  in  the  United  States  in  favor  of  the 
rights  of  local  state  government  was  more  easily  overcome  by 
the  enactment  of  local  legislation  paralleling  the  federal  law, 
even  where  the  latter  would  have  been  sufficient  of  itself  to 
accomplish  its  purpose. 

It  is  equally  beside  the  point  to  inquire  whether  a  more  effi- 
cient administration  of  the  law  might  have  been  secured  had 
it  been  entrusted  to  officials  appointed  by  and  legally  respon- 
sible to  the  Federal  Government.  For  practical  purposes  there 
was  no  other  recourse  for  the  Federal  Government  than  to  fall 
back  upon  the  state  administrative  agencies  already  in  exist- 
ence and  to  create  in  cooperation  with  the  state  governors  such 
new  agencies  as  were  needed.  But  even  had  it  been  possible 
for  the  Federal  Government  to  build  up  an  administrative  ma- 
chinery of  its  own  for  the  enforcement  of  its  new  laws,  the 
presence  of  so  many  federal  agents  in  the  several  States  miglit 
have  tended  to  encourage  resistance  rather  than  obedience  to 
the  law.  The  administration  of  the  Selective  Service  Act 
through  the  agency  of  local  boards  appointed  by  the  state 
governors  is  a  striking  recognition  of  this  fact  on  the  part  of 
the  Federal  Government.^  One  may  admit,  therefore,  the  loss 
of  efficiency  due  to  duplication  of  effort  in'  respect  both  to 
legislation  and  to  administration  and  yet,  considering  the  cir- 
cumstances, hold  that  such  duplication  furnished  in  many  cases 
the  readiest  means  of  putting  the  governmental  machinery  of 
the  States  in  motion  for  the  enforcement,  if  not  in  all  cases 
of  the  actual  provisions  of  the  federal  law,  at  least  of  its 
general  objects.  A  Federal  Government  which  seeks  to  rec- 
oncile the  opposing  ideals  of  national  unity  and  of  local 
autonomy  must  pay  the  price  in  the  size  of  its  administrative 
officialdom  and  in  the  enhanced  cost  of  the  functions  it  per- 
forms. 

1  See  above,  pp.  211-213. 


PART  IV 

PROBLEMS  OF  RECONSTRUCTIO-N  IN  THE  UNITED 
STATES  RAISED  BY  THE  WAR 


CHAPTER  X 

NEW    IDEALS   OF   DEMOCRACY 

General   eifect   of   the   war   upon   political   institutions. 

With  the  signing  of  the  armistice  and  the  gradual  slowing  down 
of  the  war  machinery  of  the  separate  States,  the  reaction  an- 
ticipated by  all  observers  began  to  set  in.  A  year  has  since 
elapsed  and  we  are  as  yet  only  beginning  to  realize  how  far- 
reaching  have  been  the  effects  of  the  war  not  merely  upon  the 
structure  and  functions  of  our  political  institutions,  but  upon 
the  fundamental  principles  underlying  them.  Victors  and 
vanquished  aUke  have  felt  the  force  of  new  disruptive  move- 
ments. While  the  polyglot  Austro-Hungarian  empire  has  dis- 
integrated into  its  component  parts,  and  Russia  has  gone 
through  an  even  more  severe  ordeal  of  civil  war,  the  other  na- 
tions have  not  escaped  the  effects  of  the  great  political  earth- 
quake. After  a  brief  period  of  revolution  following  her  trans- 
formation from  an  empire  into  a  republic,  Germany  returned 
to  a  degree  of  political  stability  that  is  threatened  for  the  time 
being  only  by  the  economic  burdens  imposed  upon  her  by  the 
treaty  of  peace.  Humiliation  at  the  hands  of  a  common  enemy 
has  had  its  historic  effect  in  mitigating  the  sharpness  of  class 
hostility  •and  in  drawing  the  parts  of  the  empire  within  the 
circle  of  a  common  sympathy.  Domestic  problems  of  read- 
justment are,  therefore,  for  the  moment  subordinated  in  Ger- 
many to  the  great  international  problem  of  self-preservation.^ 
On  the  other  hand,  Great  Britain,  France,  Italy,  and  the  United 
States  are  still  feeling  the  strain  of  the  war,  and  are  being 

1  The  abortive  revolution  of  the  Pan-Germanists  against  the  Social- 
Democratic  Government,  which  has  just  taken  place,  is  the  first  mani- 
festation of  domestic  division,  although  even  here  it  is  possible  that 
the  terms  of  the  peace  treaty  are  an  underlying  cause. 

229 


230      POLITICAL  SYSTEMS  IN  TRANSITION 

urged  on  under  varying  degrees  of  pressure  to  alter  their 
economic  system  and  with  it,  to  a  greater  or  less  degree,  the 
machinery  of  their  political  organization.  In  Great  Britain  and 
the  United  States  domestic  problems  loom  larger  upon  the 
horizon  owing  to  the  greater  security  of  their  international  posi- 
tion ;  but  the  same  issues  of  internal  reconstruction  will  press  in 
varying  degrees  upon  France  and  Italy  as  soon  as  the  more 
important  demands  of  their  foreign  policy  have  been  settled. 
What  will  be  the  ultimate  indirect,  but  none  the  less  real,  ef- 
fect of  the  war  upon  our  existing  political  institutions  must  be 
for  the  historian  of  the  future  to  determine.  For  the  present 
we  can  only  survey  the  changes  that  have  taken  place  which 
promise  to  have  constructive  effects,  and  make  a  tentative 
effort  to  mark  out  the  lines  of  probable  development  in  the 
immediate  future. 

The  principle  of  self-determination.  During  the  first  two 
years  of  the  war  the  moral  forces  of  public  opinion  in  neutral 
countries  were  directed  chiefly  to  the  question  of  placing  re- 
sponsibility for  the  catastrophe.  Then  in  December,  1916, 
public  opinion  veered  to  the  problem  of  formulating  the  terms 
of  a  just  settlement  of  the  conflict.  A  month  later,  on  Janu- 
ary 22,  19 1 7,  President  Wilson  presented  to  the  Senate  a  state- 
ment of  the  constructive  conditions  upon  which  he  considered 
it  possible  that  the  United  States  might  cooperate  with  the  na- 
tions of  the  world  in  establishing  an  international  league  to 
guarantee  peace.  Among  these  conditions  was  the  principle 
that  "  no  peace  can  last,  or  ought  to  last,  which  does  not  recog- 
nize and  accept  the  principle  that  governments  derive  all  their 
just  powers  from  the  consent  of  the  governed,  and  that  no 
right  anywhere  exists  to  hand  peoples  about  from  sovereignty 
to  sovereignty  as  if  they  were  property."  Here  we  have  the 
right  of  the  self-determination  of  national  groups  set  forth  as 
an  abstract  principle  in  terms  borrowed  directly  from  the 
American  Declaration  of  Indcj)endence.  A  year  later,  on  Jan- 
uary 8,  1918,  when  the  United  States  was  itself  a  belligerent, 
the  same  principle  was  reiterated  in  more  definite   form  as 


NEW  IDEALS  OF  DEMOCRACY  231 

applying  specifically  to  the  subject  nationalities  of  the  enemy 
powers.  Among  these  subject  nationalities  the  idea  worked  as 
a  ferment  of  revolt,  and  long  before  the  armistice  was  signed 
revolutionary  committees  had  been  formed  by  them  in  the 
countries  of  the  Allies  to  give  effect  to  the  program  of  libera- 
tion. In  their  turn  the  countries  of  the  Allied  powers  reacte  1 
to  the  appeal  for  the  release  of  national  groups  from  the  yoke 
of  the  oppressor.  In  the  United  States  in  particular  the  re- 
sponse was  earnest  and  insistent,  and  the  principle  which  hacj 
served  to  justify  its  own  revolution  became  the  justification  and 
the  inspiration  of  its  forces  in  their  first  war  upon  the  soil  of 
Europe.^ 

Its  connection  with  the  ideal  of  democracy.  It  was  but 
natural  that  the  right  of  self-determination  of  nationalities 
should  have  its  effect  upon  the  ideals  of  democracy  within  the 
boundaries  of  the  newly  emancipated  States.  For  the  same 
theory  of  liberty  which  underlies  the  claim  of  national  groups  as 

1  It  is  difficult  to  determine  how  far  the  right  of  the  self-determina- 
tion of  national  groups  can  be  said  to  have  become  an  accepted  prin- 
ciple of  international  relations.  At  the  peace  conference  at  Paris  the 
principle  was  applied  only  to  the  subject  nationalities  of  the  enemy 
powers.  It  is  clear  that  the  application  of  the  principle  is  still  con- 
ditioned by  the  political  development  of  the  subject  group  and  by  the 
promise  which  it  gives  of  being  able  to  maintain  a  stable  existence  as 
an  independent  state.  The  United  States,  for  example,  has  prom- 
ised self-government  to  the  Philippine  Islands  when  they  have  given 
proof  of  their  ability  to  govern  themselves;  while  Great  Britain  con- 
siders Egypt  and  India  to  be  ready  only  for  a  similar  probationary 
degree  of  self-government.  Moreover,  the  principle  is  conditioned  by 
the  political  relations  between  the  dominant  state  and  the  subject  com- 
munity, and  here  no  general  rule  can  be  laid  down.  Great  Britain 
denies  independence  to  Ireland  partly  on  the  ground  of  alleged  dan- 
ger to  her  own  safety  from  the  presence  of  an  unfriendly  state  at 
her  ocean  gates.  Porto  Rico's  independence  would  in  the  eyes  of 
the  United  States  be  uncalled  for  by  the  insignificant  size  of  her 
political  group.  Whether  the  decision  of  the  dominant  state  be  just 
or  unjust  in  these  cases,  it  is  clear  that  the  right  of  self-determina- 
tion has  not  yet  been  accepted  by  international  law  except  in  the 
most  general  terms. 


232      POLITICAL  SYSTEMS  IN  TRANSITION 

a  unit  to  choose  their  governments  and  determine  their  destiny 
underlies  the  claim  of  individual  members  of  each  national 
group  to  have  a  voice  in  determining  the  character  of  their 
particular  governments  and  the  economic  and  social  policies 
which  those  governments  are  to  pursue.  When  the  Czecho- 
slovak National  Council,  acting  in  the  character  of  a  Provi- 
sional Government,  drew  up  its  Declaration  of  Independence 
in  Paris  on  October  8,  1918,  it  first  recited  at  length  the  his- 
tory of  its  grievances  against  the  Hapsburg  dynasty  and  re- 
pudiated the  claim  of  that  dynasty  to  rule  against  the  will  of  the 
Czechoslovak  people.  It  then  set  forth  the  ideals  of  its  own 
domestic  government,  in  which  the  principle  of  the  freedom  of 
nationalities  took  shape  as  the  freedom  of  the  individual  citi- 
zen against  special  privileges  and  class  legislation.  Freedom 
of  conscience,  of  speech,  and  of  the  press,  and  the  right  of  as- 
sembly and  of  petition  were  guaranteed.  Universal  suffrage 
was  granted,  the  rights  of  minorities  were  safeguarded  by  pro- 
portional representation,  and  the  lesser  national  groups  within 
the  repubhc  were  assured  equal  rights.  Again,  when  the 
Mid-European  Union  of  the  newly  liberated  nations  extend- 
ing from  the  Baltic  to  the  Adriatic  was  created  on  October  26, 
191 8,  in  Independence  Hall,  Philadelphia,  the  assertion  of  the 
"  inalienable  right  of  every  people  to  organize  their  own  gov- 
ernment "  was  followed  by  a  statement  of  the  wrongs  which 
had  been  suffered  at  the  hands  of  their  former  governments 
in  respect  to  the  fundamental  rights  of  citizenship,  and  the 
signers  of  the  Declaration  pledged  themselves  that  the  prin- 
ciples therein  set  forth  should  be  "  incorporated  in  the  organic 
laws  "  of  whatever  governments  their  respective  peoples  might 
thereafter  establish.  Thus  freedom  of  citizenship  within  the 
State  became  associated  with  freedom  of  the  State  as  a  whole, 
and  it  was  recognized  that  the  right  of  a  group  to  demand  its 
emancipation  from  alien  control  necessarily  carried  with  it  the 
obligation  to  respect  certain  fundamental  rights  which  the  citi- 
zen might  claim  against  the  group  itself. 
The  appeal  to  democratic  ideals  during  the  war.    At  the 


NEW  IDEALS  OF  DEMOCRACY  233 

same  time  that  the  new  nations  were  affirming  their  belief  in 
the  principles  of  democracy  as  a  natural  concomitant  of  their 
assertion  of  the  principle  of  self-determination,  the  United 
States,  which  had  long  since  given  its  adherence  to  those  prin- 
ciples in  the  abstract,  was  confronted  with  new  problems  bear- 
ing upon  their  interpretation  and  application.  On  every  side 
appeals  were  made  by  the  Government  to  the  citizen  body  and 
by  the  leading  organs  of  public  opinion  to  their  circle  of  readers 
to  rally  to  the  support  of  the  moral  issues  that  were  at  stake 
in  the  war.  In  Great  Britain  and  France,  where  the  call  of 
self-defense  was  clear  and  unmistakable,  the  appeal  to  ideals 
was  naturally  less  persistent  than  in  the  United  States,  whose 
people  found  it  difficult  by  reason  of  their  isolated  position  to 
realize  the  menace  of  a  foreign  foe.  Moreover  the  traditional 
foreign  policy  of  the  United  States  had  been  such  as  to  make 
the  proposal  of  a  war  in  Europe  one  which  required  a  far  more 
convincing  justification  on  moral  grounds.  The  educational 
propaganda  carried  on  by  the  Committee  on  Public  Information 
was  but  a  small  part  of  the  general  program  of  appeal  from 
platform,  pulpit,  and  press,  seeking  to  clarify  the  issues  of  the 
conflict  and  to  show  how  intimately  the  ideal  of  democracy 
which  had  dominated  the  United  States  since  the  days  of  the 
Revolution  was  bound  up  with  the  defeat  of  the  armies  of  the 
Central  Powers.  That  ''the  world  must  be  made  safe  for 
democracy  "  became  the  battle  cry  of  America.  The  call  from 
the  President  was  to  fight  "  for  the  ultimate  peace  of  the  world 
and  for  the  liberation  of  its  peoples,  the  German  peoples  in- 
cluded :  for  the  right  of  nations  great  and  small  and  the  privilege 
of  men  everywhere  to  choose  their  way  of  life  and  of  obedi- 
ence." 

Application  of  the  ideal  to  domestic  conditions.  It  was 
inevitable  that  this  nation-wide  appeal  to  patriotism  and  high 
ideals  should  awaken  deeper  moral  forces  than  such  as  could 
be  satisfied  with  a  mere  triumph  of  armies  over  the  enemy. 
Once  the  seeds  of  a  new  faith  have  been  sown  broadcast  and 
have  taken  deep  root  in  the  popular  mind,  the  plant  cannot 


234       POLITICAL  SYSTEMS  IN  TRANSITION 

be  arrested  until  it  has  attained  its  full  development.  The  mo- 
tives which  aroused  the  citizen  body  to  resist  oppression  from 
without  were  equally  valid  against  oppression  from  within  the 
State.  In  consequence,  there  came  throughout  the  country  a 
time  of  searching  of  hearts  and  men  began  to  ask  themselves 
whether  the  democracy  for  which  the  world  was  to  be  made 
safe  had,  in  truth,  been  realized  in  the  domestic  institutions  and 
policies  of  the  nations  upon  whose  military  banners  it  was  so 
prominently  inscribed.  Could  it  indeed  be  said  that  the  exist- 
ing laws  of  the  State  corresponded  with  that  ideal  of  democ- 
racy which  was  the  antithesis  of  all  that  absolutism  stood  for? 
The  very  vagueness  of  the  ideal  made  the  critical  inquiry  as  to 
its  actual  realization  the  more  far-reaching  and  the  more  diffi- 
cult to  satisfy.  Democracy  had  become,  as  it  were,  synonymous 
with  freedom  and  justice,  and  the  searchlight  of  an  alert  pub- 
lic conscience  was  turned  into  the  darker  corners  of  public  life 
where  old  abuses  had  hitherto  remained  more  or  less  hidden 
from  sight.  This  introspective  process  became  all  the  more 
insistent  after  the  signing  of  the  armistice.  The  early  and 
unexpected  victory  of  democracy  over  the  enemy  from  with- 
out its  gates  broke  upon  the  public  mind  before  the  energies 
concentrated  for  that  object  had  been  half  expended.  In  a 
moment  of  illusion  men  saw  the  world  of  nations  remade  and  a 
new  order  of  freedom  and  justice  take  the  place  of  the  out- 
worn international  institutions  which  had  failed  to  prevent 
the  great  catastrophe.  Was  it  too  fantastic  to  hope  that  out- 
worn domestic  institutions  might  in  like  manner  give  place  to  a 
new  political  system  worthy  of  the  lofty  visions  that  had  taken 
possession  of  the  popular  mind?  The  question  was  asked  by 
one  and  all  to  whom  existing  conditions  had  not  met  the  meas- 
ure of  their  aspirations.  The  result  was  that  a  deep  and  wide- 
spread spirit  of  unrest  began  to  be  manifested,  even  in  those 
countries  in  which  the  elements  to  unrest  had  hitherto  been 
regarded  as  constituting  a  negligible  proportion  of  the  com- 
munity at  large.  Not  only  were  existing  political  institutions 
the  object  of  criticism  and  distrust,  but  it  came  to  be  questioned 


NEW  IDEALS  OF  DEMOCRACY  235 

by  many  whether  the  whole  purpose  and  aim  of  the  State  it- 
self had  not  been  perverted  from  its  primary  object  of  secur- 
ing liberty  and  justice  to  one  and  all  and  had  been  concentrated 
upon  the  protection  of  the  special  interests  of  a  privileged 
few. 

The  demand  for  industrial  democracy.  The  causes  of 
this  spirit  of  unrest,  which  in  the  year  that  has  elapsed  since 
the  signing  of  the  armistice  has  increased  rather  than  abated 
in  extent,  lie  in  the  domestic  conditions  of  the  different  coun- 
tries and  to  that  extent  they  are  a  primary  concern  of  the  soci- 
ologist and  the  economist.  But  in  so  far  as  these  conditions 
demand  for  their  cure  the  creation  of  a  new  political  organiza- 
tion or,  at  least  extensive  adjustments  of  the  existing  political 
machinery,  they  become  a  problem  of  equal  importance  to  the 
statesman.^  In  the  United  States  the  problem  is  partly  based 
upon  the  revolt  of  the  worker  against  the  domination  of  capi- 
talistic control  of  industry,  after  the  manner  of  the  revolt  of 
national  groups  against  the  domination  of  an  alien  govern- 
ment ;  and  again  partly  based  upon  the  demand  of  large  masses 
of  the  population  for  a  fuller  share  in  the  wealth  of  the  country 
than  has  been  assigned  them  by  the  processes  of  industrial 
competition.     On  the  one  hand  it  is  asked,  why  fight  a  war  to 

^  Politics,  economics  and  sociology  have,  indeed,  ceased  to  be  divided 
by  any  clear  line  of  demarcation  and  have  come  to  deal  in  large  part 
with  the  same  subject-material,  but  from  their  own  distinct  points  of 
view.  The  sociologist  concentrates  upon  the  human  instincts  and 
motives  which  bring  men  together  in  groups,  the  economist  concen- 
trates upon  external  conditions  which  govern  the  struggle  of  these 
groups  to  provide  for  their  material  welfare,  while  the  political  sci- 
entist or  statesman  concentrates  upon  the  governmental  organization 
demanded  to  maintain  law  and  order  in  the  development  of  these 
social  and  economical  relationships.  The  more  complex  social  and 
economic  life  becomes,  the  more  complex  is  the  political  organization 
required  to  meet  the  demands  of  law  and  order,  and  in  turn  the  ex- 
istence of  the  political  organization  reacts  upon  the  social  and  eco- 
nomic relationships  which  called  for  its  creation.  Henceforth,  more 
than  ever,  workers  in  the  three  fields  of  science  must  be  continually 
in  consultation  with  one  another. 


236      POLITICAL  SYSTEMS  IN  TRANSITION 

make  the  world  safe  for  a  political  democracy  which  has  such 
obvious  limitations  in  the  satisfaction  of  the  desire  for  free- 
dom? Of  what  advantage  is  it  to  cast  a  ballot  for  the  officers 
of  the  State  when  by  far  the  larger  part  of  the  life  of  the 
average  worker  is  spent  under  conditions  of  employment  dic- 
tated by  industrial  officers  whom  he  is  powerless  to  control? 
Why  speak  of  a  legal  freedom  of  contract  when  for  all  prac- 
tical purposes  the  pressure  of  economic  necessity  forces  the 
worker  to  accept  the  best  bargain  he  can  make?  The  assump- 
tion underlying  both  the  federal  and  the  early  state  constitutions 
at  the  time  of  their  adoption  was  that  political  liberty  was  the 
primary  object  of  government;  but  this  assumption  has  proved 
to  be  completely  inadequate  in  the  presence  of  modern  industrial 
conditions  which  have  fundamentally  altered  the  relation  of  the 
individual  citizen  to  the  community.  The  demand  is,  therefore, 
being  made  that  political  democracy  be  supplemented  by  in- 
dustrial democracy,  and  that  the  principle  of  self-government 
with  its  connotations  of  self-imposed  restraints  and  self-de- 
termined policies  shall  be  applied  to  the  industrial  community 
in  much  the  same  way  in  which  it  is  applied  to  the  same  group 
of  persons  in  their  capacity  of  citizens  of  the  State. 

Forms  of  industrial  democracy.  Stated  thus  in  the  more 
abstract  terms  of  theoretical  democracy  the  phrase  "  industrial 
democracy  "  is  sufficiently  intelligible,  but  when  applied  as  a 
practical  rule  to  the  concrete  facts  of  industrial  life  its  forms 
are  as  diversified  as  are  the  forms  which  the  theory  of  po» 
litical  democracy  has  taken  when  converted  into  a  working 
agency  of  government.  As  the  phrase  is  now  popularly  used, 
it  describes  a  reorganization  of  industry  in  which  the  workers 
shall  be  given  a  share  in  the  management  of  the  particular  es- 
tablishment in  which  they  work,  and  shall  become  co-partners 
instead  of  servants  in  industrial  enterprise,  just  as  the  citi- 
zen body  at  large  without  respect  to  property  or  social  posi- 
tion have  become  co-partners  in  the  creation  and  direction 
of  the  agencies  of  government.  The  practical  applications  of 
industrial  democracy  vary  all  the  way  from  a  limited  demand 


NEW  IDEALS  OF  DEMOCRACY  237 

of  the  workers  to  organize  and  elect  representatives,  through 
whom  they  may  voice  their  interests  and  grievances,  to  the 
extreme  form  of  complete  control  of  the  organization  and 
policies  of  the  establishment.  In  its  more  moderate  forms  it 
is  already  in  operation  in  numerous  industries  in  Great  Britain 
in  the  form  of  the  "  Works'  Committees  "  recommended  in  the 
Whitley  Report.^  These  committees  represent  both  the  em- 
ployers and  the  workers  and  have  a  wide  range  of  functions 
including  questions  of  discipline  in  the  workshop,  the  settle- 
ment of  the  general  principles  governing  the  conditions  of  em- 
ployment and  the  payment  of  w^ages,  the  adjustment  of  dis- 
putes between  the  employers  and  the  workers,  provision  for 
industrial  education,  and  the  readjustment  of  the  seasonal  fluc- 
tuations of  industry  so  as  to  secure  greater  stability  of  employ- 
ment. Similar  committees,  though  possessing  less  compre- 
hensive functions,  are  now  being  introduced  into  isolated  in- 
dustries in  the  United  States,  and  indications  point  to  the 
rapid  growth  of  the  movement  here  as  well  as  in  Great  Brit- 
ain. A  conservative  statement  of  industrial  democracy,  as 
understood  by  the  American  Federation  of  Labor,  may  be  found 
in  the  "  Reconstruction  Program  "  prepared  by  the  Committee 
on  Reconstruction  created  by  the  annual  convention  of  1918, 
and  endorsed  by  the  Executive  Council.  Under  the  subheading 
of  "  Democracy  in  Industry  "  the  program  compares  the  law  of 
the  State  with  the  rules  of  industry  and  points  out  that  whereas 
the  methods  of  democracy  prevail  in  the  enactment  of  legisla- 
tion, the  rules  of  industry  are  created,  except  where  effective 
trade  unionism  exists,  by  the  arbitrary  whim  of  the  employers. 
*'  Both  forms  of  law,"  it  is  said,  "  vitally  affect  the  workers' 
opportunities  in  life  and  determine  their  standard  of  living. 
The  rules,  regulations  and  conditions  within  industry  in  many 
instances  affect  them  more  than  legislative  enactments.  It  is, 
therefore,  essential  that  the  workers  should  have  a  voice  in  de- 
termining the  laws  within  industry  and  commerce  which  afTcct 
them,  equivalent  to  the  voice  which  they  have  as  citizens  in  de- 

1  See  above,  p.  98. 


238      POLITICAL  SYSTEMS  IN  TRANSITION 

termining  the  legislative  enactments  which  shall  govern  them." 
The  form  of  industrial  democracy  proposed  by  the  Federa- 
tion, however,  consists  merely  in  the  recognition  by  the  em- 
ployer of  the  "  right  to  organize  into  trade  unions  "  and  no 
machinery,  such  as  joint  industrial  councils,  is  offered  to  sup- 
plement the  present  negotiations  between  the  several  labor 
unions  and  the  employer. 

Proposals  of  the  Industrial  Conference.  Perhaps  the  best 
expression  of  progressive  public  opinion  on  the  subject  of  in- 
dustrial democracy  is  to  be  found  in  the  report  of  the  Indus- 
trial Conference  which  met  in  Washington  on  December  i, 
1919,  at  the  call  of  the  President.  The  calling  of  the  Con- 
ference had  been  precipitated  by  the  failure  of  an  earlier  Na- 
tional Industrial  Conference,  which  had  met  in  Washington  on 
October  6,  1919,  to  find  a  solution  for  the  prevailing  industrial 
unrest.  This  first  conference  proved  ineffectual  owing  to  its 
inability  to  come  to  an  agreement  upon  the  principle  of  col- 
lective bargaining.^  The  second  Conference  from  the  outset 
declared  itself  "in  favor  of  the  policy  of  collective  bargain- 
ing "  and  drew  up  its  proposals  for  the  settlement  of  indus- 
trial disputes  upon  the  frank  acceptance  of  that  principle. 
Omitting  from  consideration  the  elaborate  machinery  of  na- 
tional and  regional  boards  for  the  settlement  of  industrial  dis- 
putes which  the  Conference  recommended,  attention  may  be 
called  to  its  proposal  of  a  system  of  *'  employee  representa- 
tion "  within  each  industrial  plant  as  the  chief  means  of  pre- 
venting industrial  disputes  from  arising.  Obstacles  were  con- 
fronted in  the  unwillingness  on  the  part  of  employers  to  deal 
with  officials  of  the  American  Federation  of  Labor  or  other 

lA  majority  of  the  Conference  as  a  whole  had  favored  the  recog- 
nition of  the  principle  of  collective  bargaining,  but  a  form  of  pro- 
cedure had  been  adopted  by  the  Conference  which  provided  that  no 
resolution  could  become  effective  unless  agreed  to  by  the  votes  of  all 
of  the  three  groups,  representing  employt?rs,  employees,  and  the 
public,  into  which  the  Conference  was  divided.  The  employers'  group 
voted  by  a  majority  against  recognition  of  the  principle,  and  thus  pre- 
vented its  aoceptanc*  by  the  Conference. 


NEW  IDEALS  OF  DEMOCRACY  239 

federated  union  leaders,  as  not  being  truly  representative  of 
their  employees,  and  in  the  fear  on  the  part  of  union  leaders 
lest  shop  representation  prove  to  be  a  subtle  weapon  directed 
against  the  unions.  A  reconciliation  had  to  be  effected,  there- 
fore, between  the  organization  of  labor  by  trades  and  the  or- 
ganization of  labor  within  each  industry  as  a  unit.  The  Con- 
ference found  that  the  relation  between  the  two  was  "  a  com- 
plementary, and  not  a  mutually  exclusive  one,"  and  that  in  many 
plants  the  trade  union  and  the  shop  committee  were  already 
functioning  harmoniously,  and  that  there  were  distinct  func- 
tions to  be  performed  by  each  organization.  "Joint  organi- 
zation through  employee  representation "  was  thus  the  pro- 
posal which  the  Conference  offered  as  "  a  means  of  preventing 
misunderstanding  and  of  securing  cooperative  effort."  Em- 
ployers and  employees  were  to  meet  together  regularly  to  deal 
with  their  common  interests.  The  Conference  recognized  the 
existence  of  conflicting  interests  between  employers  and  em- 
ployees, but  believed  that  there  were  "  wide  areas  of  activity  in 
which  their  interests  coincide,"  and  that  it  was  ''  the  part  of 
statesmanship  to  organize  identity  of  interest  where  it  exists 
in  order  to  reduce  the  area  of  conflict."  "  The  representa- 
tive principle  is  needed,"  it  said,  "  to  make  effective  the  em- 
ployee's interest  in  production,  as  well  as  in  wages  and 
working  conditions.  It  is  likewise  needed  to  make  more 
effective  the  employer's  interest  in  the  human  element  of 
industry."  ^ 

Radical  phases  of  industrial  democracy.  The  demand  for 
the  more  extreme  forms  of  industrial  democracy  approximates 
more  or  less  closely  to  the  program  of  the  Syndicalists,  and 
amounts  to  the  complete  management  of  industry  by  self-gov- 

^  The  reader  may  make  comparisons  with  the  "  works'  committees  " 
in  Great  Britain  proposed  by  the  Whitley  report  (see  above,  p.  98), 
and  with  the  "  workers'  councils  "  created  by  the  new  German  Consti- 
tution (see  above  p.  57). 

2  It  is  expressed  graphically  in  the  statement  of  the  leader  of  the 
British  workers  ia  the  shipyards  along  the  Clyde,  who  in  answer  to 


240      POLITICAL  SYSTEMS  IN  TRANSITION 

erning  industrial  groups.^  This  form  of  industrial  reconstruc- 
tion, or  rather  revolution  in  some  of  its  aspects,  received  a 
marked  impulse  as  a  reaction  against  the  temporary  control 
exercised  by  the  British  and  American  Governments  over  in- 
dustry during  the  war.  The  ideal  of  a  Socialist  State  which 
should  own  and  operate  the  principal  instruments  of  produc- 
tion and  distribution  had  always  included  as  an  essential  con- 
dition that  the  State  itself  should  be  under  the  control  of  the 
workers.  The  experience  of  the  war,  however,  made  it  clear 
to  many  Socialists  that  there  was  ever  probability  that  further 
extensions  of  government  ownership  under  existing  conditions 
might  result  merely  in  a  change  of  masters ;  and  no  advantage 
was  found  in  exchanging  the  individual  capitalist  for  a  govern- 
ment controlled  by  capitalists.  Even  before  the  war  a  group 
of  Guild  Socialists  in  England  had  pointed  out  this  danger,  and 
had  planned  to  offset  it  by  a  system  of  decentralized  labor  con- 
trol. The  basic  unit  proposed  by  these  writers  is  an  industrial 
union  as  opposed  to  a  craft  union,  for  which  unit  they  have 
revived  the  name  of  "  guild."  These  local  guilds  are  to  be 
federated  into  a  national  guild,  which  is  to  have  its  Guild  Con- 
gress meeting  side  by  side  and  in  cooperation  with  Parliament.^ 
In  France  the  Syndicalist  organization,  an  older  body  than  the 
Guild  Socialists,  is  based  upon  a  union  of  two  federations,  that 

the  question  of  an  employer  as  to  what  was  still  wanted  after  suc- 
cessive increases  in  wages  had  been  made,  replied,  "  We  want  the 
works." 

1  It  has  been  pointed  out  above  (p.  96)  that  there  is  a  sharp  divi- 
sion in  the  labor  movement  in  Great  Britain  between  those  who  favor 
the  nationalization  of  the  great  industries  and  those  who  are  opposed 
to  conferring  such  powers  upon  the  state  as  at  present  organized. 
The  Labor  party  has  put  forth  a  definite  program  for  the  "  socializa- 
tion "  of  the  great  industrial  agencies  which  control  the  necessities  of 
life,  and  at  the  same  time  it  is  pressing  an  even  more  radical  demand 
in  the  shape  of  the  socialization  of  wealth  already  created  and  con- 
centrated in  the  hands  of  a  small  number  of  capitalists.  The  strength 
of  the  party  makes  its  program  significant,  but  there  are  influential 
voices  in  protest  against  what  is  considered  a  dangerous  enlargement 
of  the  sphere  of  state  control. 


NEW  IDEALS  OF  DEMOCRACY  241 

of  the  local  trade  unions,  and  that  of  the  local  bourses  which 
represent  all  the  labor  elements  of  the  community.  Like  the 
Guild  Socialists,  the  Syndicalists  advocate  self-governing 
industrial  groups  and  are  opposed  to  Socialism  and 
collective  ownership;  but  they  differ  from  the  Guild  Social- 
ists in  advocating  "  direct  action,"  in  the  form  of  sabotage  and 
the  general  strike,  as  a  means  of  attaining  their  objects.  In 
the  United  States  the  Industrial  Workers  of  the  World,  better 
known  as  the  I.  W.  W.,  are  in  respect  to  their  methods  of 
direct  action  more  radical  even  than  the  French  Syndicalists 
and  less  definite  in  their  aims,  but  with  them  also  it  is  the 
local  self-governing  industrial  group  that  forms  the  basis  of 
their  industrial  program.^ 

Necessity  of  experimental  steps.  That  the  demand  for  in- 
dustrial democracy  is  one  which  may  easily  run  counter  to 
sound  principles  of  political  and  economic  experience  will  doubt- 
less be  admitted  by  all  except  its  most  extreme  advocates. 
Conceding  the  necessity  of  inaugurating  a  program  of  co- 
operation between  employers  and  employees  in  industrial 
management,  the  question  becomes  one  of  determining  the  steps 
by  which  it  shall  be  introduced  and  the  restrictions  with  which 

1  It  is  important,  in  view  of  the  indiscriminate  use  in  the  public 
press  of  the  terms  Socialist,  Syndicalist,  Anarchist,  Bolshevik,  and 
"  Red,"  to  distinguish  between  their  respective  attitudes  towards  in- 
dustrial democracy.  Judging  them  by  their  aims  rather  than  their 
methods,  they  may  be  roughly  classified  as  follows :  the  Socialist  (of 
the  orthodox  Marxian  type)  makes  collective  or  state  ownership  the 
basis  of  his  reforms;  the  Syndicalist  looks  to  self-governing  indus- 
trial groups  as  the  unit  of  organization  with  federation  as  the  means 
of  adjusting  their  conflicting  interests;  the  Anarchist  (of  the  philoso- 
phic type,  like  Kropotkin)  relies  upon  similar  self-governing  indus- 
trial groups,  with  the  government  of  the  state  eliminated;  the  Bol- 
shevik combines  Marxian  Socialism,  in  the  collective  ownership  of 
land  and  industry,  with  a  measure  of  Syndicalism  in  the  organization 
of  the  state  by  Soviets ;  while  the  "  Red  "  may  fall  into  any  one  of  the 
four  groups,  being  distinguished  by  the  methods  of  violence  which 
he  advocates  to  secure  his  aims  rather  than  by  the  character  of  the 
aims  themselves. 


242       POLITICAL  SYSTEMS  IN  TRANSITION 

it  must  be  surrounded  during  its  initial  stages.  The  inevitable 
tendency  of  the  most  moderate  forms  of  industrial  democracy 
must  be  to  push  on  until  in  due  time  complete  control  over 
industry  is  obtained  in  respect  to  profits  as  well  as  to  manage- 
ment. Whether  the  latter  stage  is  to  be  the  ultimate  and  ideal 
goal  of  industrial  development  is  still  a  matter  of  theoretical 
discussion.  But  it  would  seem  clear  that,  apart  from  any 
question  of  the  confiscation  of  property,  the  universal  and 
abrupt  introduction  of  the  syndicalist  program  of  self-govern- 
ing industrial  groups,  before  a  sense  of  collective  responsibility 
and  enlightened  self-interest  on  the  part  of  the  w^orkers  has 
been  developed  and  before  the  complex  relations  between  the 
individual  industry  and  industries  as  a  whole  have  been  care- 
fully worked  out,  is  one  which  may  well  give  pause  to  all 
who  have  the  experience  of  political  development  before  their 
eyes.  Political  democracy  has  not  attained  its  success  except 
at  the  price  of  a  degree  of  inefficiency  and  disorganization 
which  would  have  sent  the  average  industrial  establishment 
into  bankruptcy.  In  so  far  as  the  economic  life  of  the  com- 
munity is  more  complex  than  its  political  life  and  contains 
greater  possibilities  of  disastrous  mismanagement,  there  will 
be  the  greater  danger  of  the  presence  of  that  partisanship 
which  is  the  besetting  sin  of  politics.  Industrial  groups  may 
become  as  keen  rivals  as  individual  employers,  with  the  prob- 
ability of  less  control  over  them  by  the  State  as  a  whole. 
Within  the  industries  themselves  unity  of  command  in  the 
organization  and  directive  ability  will  continue  to  be  essential 
conditions  of  efficient  production,  and  the  advantages  claimed 
for  democratic  control  must  be  balanced  against  the  probability 
of  serious  losses  from  these  two  sources.  If  industrial  democ- 
racy is  entered  upon  in  any  thorough-going  way,  therefore,  it 
must  be  prepared  to  pay  some  price  in  decreased  production. 
At  the  same  time  it  must  be  ready  to  impose  upon  itself  re- 
straints similar  to  those  imposed  upon  itself  by  political  democ- 
racy;  so  that  neither  the  organization  of  industry  as  a  whole 
nor  any  part  of  it  shall  attempt  to  dictate  policies  except  in 


NEW  IDEALS  OF  DEMOCRACY  243 

accordance  with  the  fundamental  principles  of  an  industrial 
constitution.^ 

Democracy  and  the  distribution  of  wealth.  Just  as  it  is 
important  that  industrial  democracy  shall  recognize  the  value 
of  experience  in  political  self-government,  so  it  is  important 
that  the  lessons  of  economic  experience  shall  be  borne  in  mind 
when  the  demand  is  pressed  that  the  machinery  of  the  State 
shall  be  used  for  the  purpose  of  securing  a  more  equitable 
division  of  the  national  wealth.  Here  again  the  circumstances 
under  which  the  war  was  fought  gave  a  new  pertinence  to 
an  old  grievance.  The  appeal  made  by  the  Government  to 
the  patriotism  of  the  individual  citizen,  the  sudden  importance 
attached  to  mere  manual  labor  as  essential  to  the  production 
of  the  necessary  materials  of  war,  and  in  particular  the  level- 
ling of  class  distinctions  in  the  operation  of  the  Selective  Serv- 
ice Act,  all  seemed  to  point  to  a  fundamental  equality  in 
human  relationships  which  made  the  actual  inequalities  of  social 
and  economic  status  seem  strangely  inconsistent.  If  the  State 
could  call  upon  one  and  all  of  its  citizens  to  make  the  supreme 
sacrifice  or  such  lesser  sacrifices  as  might  be  in  their  power, 
did  not  this  imply  that  the  State  had  on  its  part  conferred 
such  blessings  upon  its  citizens  as  to  justify  the  demands  made 
upon  them?  Yet  the  wide  disparity  in  the  possession  of  the 
material  goods  of  life  seemed  to  contradict  any  such  assumption. 
Many  who  had  no  particular  sympathy  with  the  doctrines  of 
orthodox  Socialism,  either  in  respect  to  ownership  by  the  State 
of  the  instruments  of  production  and  distribution,  or  in  respect 
to  a  rigid  wage  system  based  upon  abstract  principles,  never- 
theless came  to  believe  that  the  actual  distribution  of  property 

1  The  economic  aspects  of  the  question  are,  of  course,  manifold,  but 
they  are  outside  the  scope  of  the  present  discussion.  Perhaps  the 
most  consistent  attempt  to  work  out  a  plan  of  industrial  democracy 
along  lines  approved  by  political  experience  is  to  be  found  in  the, 
program  of  Guild  Socialism,  or,  as  the  movement  is  now  better  de- 
scribed. National  Guilds.  See  A.  R.  Orage,  ed.,  **  National  Guilds " ; 
G.  H.  D.  Cole,  "The  World  of  Labour." 


244      POLITICAL  SYSTEMS  IN  TRANSITION 

did  not  represent  an  apportionment  based  upon  natural  eco- 
nomic laws,  but  was  rather  the  result  of  artificial  restraints 
upon  the  free  play  of  human  energies.  The  result  was  that 
a  new  force  was  given  to  the  conception  of  democracy  which 
looks  upon  the  State  not  merely  as  an  agent  for  the  protection 
of  existing  rights,  but  as  a  direct  source  of  positive  benefits 
and  as  the  dispenser  of  bounties  of  its  own  creation.  At  the 
same  time  what  was  left  of  the  old  traditional  jealousy  of  the 
interference  of  the  State  in  the  economic  life  of  the  citizen 
practically  disappeared  before  the  recognized  need  of  govern- 
mental control  over  the  great  industries  of  the  country  as  a 
means  of  prosecuting  the  war  more  successfully.  The  prob- 
lem of  the  present  after-war  period  is  on  the  one  hand  to 
reconcile  the  need  for  greater  protection  of  the  citizen  body 
against  the  power  of  the  great  corporations  controlling  the 
necessities  of  life,  without  at  the  same  time  destroying  the 
individual  initiative  in  business  enterprise  which  is  an  essential 
part  of  the  American  tradition  of  democracy.  On  the  other 
hand  the  burden  of  taxation  must  be  made  to  fall  upon  wealth 
in  due  proportion  to  its  larger  enjoyment  of  benefits  created  by 
the  State,  yet  without  discouraging  the  practice  of  private 
thrift,  or  denying  the  larger  measure  of  reward  which  energy 
and  talent  must  inevitably  command  if  their  full  powers  are 
to  be  called  forth. 

Constructive  contribution  of  the  war  to  democracy.  Thus 
far  we  have  been  viewing  what  may  be  called  the  critical  con- 
tribution of  the  World  War  to  the  problem  of  democratic 
government,  in  so  far  as  the  ideas  of  freedom  which  it  set 
in  motion  tended  to  break  through  established  political  bound- 
aries and  create  a  demand  for  a  fuller  measure  of  industrial 
liberty  and  a  more  equal  distribution  of  the  national  wealth, 
On  the  other  hand  the  war  had  the  effect  of  strengthening 
in  many  ways  the  existing  institutions  of  democracy  and  of 
enkindling  a  new  faith  in  the  old  ideals.  For  the  first  time 
in  its  history  of  128  years  the  United  States  found  itself  called 
upon  to  exert  the  full  measure  of  its  national  strength  against 
an  external  enemy.     Demands  had  to  be  made  by  the  Govern- 


NEW  IDEALS  OF  DEMOCRACY  245 

ment  upon  the  citizen  body  for  a  degree  of  cooperation  and 
self-sacrifice  which  no  previous  war  against  a  foreign  State 
had  ever  called  forth.  The  crisis  was  one  in  which  the  vital 
energies  of  democratic  government  were  put  to  a  test  more 
severe  than  it  had  ever  been  contemplated  by  the  founders  of 
the  republic  they  might  be  called  upon  to  endure.  In  its  en- 
deavor to  meet  that  test  we  have  seen  what  the  United  States 
was  able  to  accomplish  in  respect  to  the  mobilization  of  its 
national  resources.  Only  incidental  reference  was  made  to  the 
spirit  of  patriotism  animating  the  response  of  the  people  to 
the  demands  made  upon  them.  What  moral  forces  this  spirit 
of  patriotism  aroused  and  what  may  be  its  permanent  contribu- 
tion to  the  problems  of  democratic  government  may  here  be 
briefly  noticed. 

The  strengthening  of  the  bond  of  national  unity.  It  was 
to  be  expected  that  war  against  a  common  enemy  would  result 
in  binding  together  the  citizen  body  by  the  creation  of  one 
supreme  interest  which  overrode  the  lesser  interests  underly- 
ing the  dissensions  of  normal  political  and  social  life.  The 
mere  motive  of  mutual  self-defense  against  a  foreign  foe, 
however,  has  little  in  it  of  permanent  political  value.  History 
shows  that  it  has  often  been  used  by  autocratic  rulers  to  bind 
together  rebellious  elements  of  their  population,  which  can  be 
made  for  the  time  to  forget  their  domestic  grievances  before 
the  shadow  of  invading  hostile  armies.  When,  however,  that 
shadow  has  been  removed,  whether  by  victory  or  by  defeat, 
the  internal  forces  of  dissension  reassert  themselves  in  their 
full  vigor.^  Wliat  gave  a  more  than  temporary  unifying  power 
in  the  United  States  to  the  nation-wide  call  of  self-defense 
was  the  fact  that  ideals  of  political  reconstruction  were  held 
out  to  the  people  by  the  Government  from  the  very  begin- 
ning of  the  struggle.     The  war  was  a  war  in  defense  of  Amer- 

1  At  the  present  moment,  after  four  years  of  the  closest  national 
unity,  Germany  appears  to  be  in  a  state  of  political  confusion,  in 
which  there  are  no  clear  and  definite  principles  of  democracy  pos- 
sessed by  the  people  as  a  whole  which  can  be  rallied  to  the  support  of 
the  new  republican  government. 


246      POLITICAL  SYSTEMS  IN  TRANSITION 

ican  rights,  but  it  was  also  a  war  for  the  hberation  of  territor- 
ies occupied  by  the  enemy,  for  the  release  of  subject  nationalities 
from  alien  rule,  for  the  removal  of  the  barriers  of  political 
distrust  and  economic  rivalry  which  were  a  standing  menace 
to  the  peace  of  the  world.  In  the  presence  of  these  ideals 
the  appeal  to  national  unity,  it  is  believed,  had  a  distinct  con- 
structive value,  however  difficult  it  may  be  at  the  present 
moment  of  reaction  to  point  out  its  precise  effects.  It  has 
left  the  citizen  body  of  the  nation  richer  in  respect  to  the 
principles  of  cooperation  and  of  mutual  self-sacrifice  for  the 
common  good,  which  are  the  foundation  stones  of  democratic 
government.  The  ideal  may  be  temporarily  obscured  in  the 
confusion  of  partisan  conflicts,  but  it  still  remains  as  a  guid- 
ing principle  to  which  all  parties  can  appeal,  and  it  must  per- 
force exercise  a  strong  unifying  influence  at  a  time  when  the 
power  of  organized  groups  is  threatening  to  dominate  the  com- 
munity as  a  whole. 

New  emphasis  upon  the  duties  of  citizenship.  Among 
other  elements  of  constructive  political  idealism  created  by 
the  war  was  the  clearer  conception  of  the  duties  of  citizen- 
ship. It  was  owing,  doubtless,  to  the  peculiar  traditions  of 
American  development,  though  the  fault  is  shared  in  part  by 
other  democracies,  that  an  undue  importance  has  been  attached 
in  the  past  to  the  rights  of  citizenship  as  against  the  corre- 
sponding obligations  entailed  by  those  rights.  The  distrust 
of  governments  which  marked  the  early  history  of  the  United 
States,  and  the  strong  sense  of  political  and  economic  individ- 
ualism developed  by  the  opening  up  of  a  new  country  are  in 
part  responsible  for  this  attitude.  The  fundamental  "  rights  " 
of  the  citizen  were  protected  by  specific  constitutional  clauses ; 
the  fundamental  duties  were  left  to  be  reached  by  implication. 
As  a  matter  of  practical  politics  there  may  be  no  objection 
to  this  method  of  defining  duties,  but  for  educational  purposes 
it  is  seriously  deficient.  At  the  very  beginning  of  the  war 
it  was  found  necessary  to  determine  some  of  the  fundamental 
obligations  of  citizenship,  including  primarily  the  duty  to  serve 


NEW  IDEALS  OF  DEMOCRACY  247 

in  the  armed  forces  of  the  nation,  the  dtity  to  subordinate  the 
interests  of  particular  industries  to  the  prosecution  of  the 
war,  to  engage  in  manual  labor  in  essential  industries,  to  sub- 
mit to  the  losses  involved  in  price-fixing,  to  subscribe  to  govern- 
ment loans,  and  to  make  other  pecuniary  sacrifices.  The  key- 
note of  the  spirit  of  patriotic  duty  was  struck  by  President 
Wilson  in  his  proclamation  fixing  the  day  of  registration  for 
the  Selective  Service  Act :  "  The  whole  nation  must  be  a  team 
in  which  each  man  shall  play  the  part  for  which  he  is  best 
fitted.  To  this  end  Congress  has  provided  that  the  nation 
shall  be  organized  for  war  by  selection  and  that  each  man 
shall  be  classified  for  service  in  the  place  to  which  it  shall 
best  serve  the  general  good  to  call  him."  That  the  sacrifices 
demanded  by  the  Government  were  not  distributed  equally 
throughout  the  citizen  body  was  doubtless  largely  due  to  the 
difficulty  under  any  circumstances  of  framing  laws  to  ap- 
portion fairly  the  burdens  of  civic  duty ;  but  to  a  considerable 
extent  it  should  be  put  down  to  the  failure  to  anticipate  before- 
hand the  comprehensive  character  of  the  demands  which  war 
would  make  upon  the  whole  industrial  and  social  life  of  the 
nation.  But  wherever  the  fault  lay  in  that  respect,  the  appeal 
during  the  war  to  the  obligations  of  citizenship  met  with  a 
response  which  surprised  even  the  most  hopeful,  and  one  of 
the  chief  tasks  of  the  present  moment  is  to  conserve  the  spirit 
of  self-sacrifice  thus  created  and  direct  it  to  the  problems  of 
reconstruction  which  are  now  before  the  country. 

The  responsibilities  of  citizenship.  While  the  war  has 
done  much  to  create  a  deeper  sense  of  the  obligation  of  the 
individual  citizen  towards  the  State  as  a  whole,  it  has  at  the 
same  time  tended  to  strengthen  the  sense  of  responsibility 
which  the  citizen  body  of  a  democracy  must  feel  for  the  exist- 
ence among  its  individual  members  of  those  minimum  condi- 
tions of  decent  living  without  which  true  democratic  govern- 
ment is  impossible.  It  is  a  curious  feature  of  American  de- 
mocracy that  a  large  part  of  the  citizen  body  has  been  quite 
indifferer^t  in  the  past  to  conditions  of  living  among  a  section 


248      POLITICAL  SYSTEMS  IN  TRANSITION 

of  its  population  which  were  a  standing  contradiction  to  the 
ideals  of  democratic  government.  In  a  country  so  rich  in 
natural  resources  and  so  far  advanced  in  industrial  develop- 
ment as  the  United  States  there  have  existed  side  by  side  con- 
trasts of  wealth  and  poverty,  of  education  and  of  ignorance, 
which  cannot  be  reconciled  with  the  equality  of  fundamental 
rights  upon  which  the  Declaration  of  Independence  was 
based.  For  the  poverty  which  exists  in  certain  centers  of  the 
population  is  to  be  regarded  not  merely  in  its  negative  aspect, 
as  consisting  in  the  lack  of  certain  material  goods,  but  as  a 
positive  influence  in  promoting  crime  and  immorality,  in  in- 
creasing 'disease,  in  retarding  the  healthy  development  of  the 
young,  and  in  creating  the  spirit  of  unrest  which  is  popularly 
described  by  the  name  of  Bolshevism.  At  the  same  time  the 
economic  disabilities  of  poverty  have  been  attended  by  legal 
disabilities  resulting  from  an  administration  of  justice  which 
has  not  taken  into  account  the  changing  conditions  of  modern 
economic  and  social  life.^  By  contrast,  however,  to  its  former 
indifference  to  these  conditions,  there  are  signs  of  a  marked 
change  of  attitude  on  the  part  of  public  opinion  since  the  war. 
The  people  of  the  United  States  could  not  invest  themselves 
with  the  role  of  crusaders  against  foreign  aggression  without 
having  their  eyes  opened  to  similar  obligations  in  respect  to 
conditions  of  economic  oppression  at  home.  At  the  present 
moment  there  is  being  manifested  both  in  the  press  and  in 
the  activities  of  civic  associations  a  deeper  understanding  of 
the  obligations  of  trusteeship  involved  in  democratic  govern- 
ment. While  believing  that  the  constitution  of  the  State  is 
fundamentally  sound^  leaders  of  public  opinion  are  recognizing 
that  there  are  in  the  body  politic  isolated  sore  spots  which 

^A  recent  authoritative  investigation  of  the  lower  courts  of  the 
United  States  has  revealed  numerous  cases  of  miscarriage  of  justice 
in  consequence  of  long  delays  and  heavy  costs  which  the  poorer 
classes  were  unable  to  meet.  "  Justice  and  the  Poor,"  a  report  pre- 
pared for  the  Carnegie  Foundation  by  R.  H.  Smith,  with  foreword 
by  Elihu  Root. 


NEW  IDEALS  OF  DEMOCRACY  249 

must  be  removed  before  it  can  enjoy  a  healthy  existence.  The 
task  of  removing  these  sore  spots  is  one  to  which  every  citizen 
must  lend  his  aid.  There  has  been  far  too  widespread  a  tend- 
ency within  recent  years  to  look  to  the  law  to  accomplish  the 
necessary  reforms  in  our  industrial  and  social  life.  It  is  now 
beginning  to  be  realized,  in  the  light  of  the  experience  gained 
during  the  preparations  for  war,  that  the  administrative 
machinery  of  the  State,  acting  in  pursuance  of  general  laws, 
cannot  reach  many  of  the  conditions  which  urgently  need  to 
be  improved.  A  new  understanding  of  an  old  idea  is  gaining 
ground,  that  in  a  democracy  each  citizen  is  for  certain  purposes 
an  office  holder,  and  that  voluntary  agencies  must  be  created 
where  the  law  appears  to  be  unable  to  act.  The  wide  range 
of  activities  performed  by  the  great  voluntary  war  associations 
and  their  elaborate  programs  for  continued  work  in  the  same 
field  give  hope  that  the  lessons  of  the  war  have  created  a  new 
conception  of  civic  responsibility. 

Voluntary  associations  as  public  agents.  The  work  of  the 
Red  Cross  and  other  voluntary  associations,  whether  operating 
in  immediate  connection  with  the  army  or  as  auxiliary  relief 
agencies  in  fields  of  social  service  created  by  the  war,  is  suffi- 
ciently familiar  to  be  passed  over  without  comment.  It  is 
important,  however,  to  emphasize  the  fact  that  by  means  of 
these  agencies  the  Government  was  able  to  unload  a  large  part 
of  administrative  work  which  there  was  no  existing  organiza- 
tion to  handle.  At  the  same  time  these  voluntary  agencies  per- 
formed an  important  political  role,  the  usefulness  of  which,  it 
is  believed,  will  be  realized  only  in  future  years.  Theoretically 
it  was  possible  for  the  Government  to  organize  its  own  relief 
service  of  paid  employees  to  do  the  work  undertaken  by  the 
Red  Cross  and  other  privately  organized  bodies.  But  not  only 
would  the  host  of  governmental  officials  thus  required  have 
made  the  machinery  of  government  so  complex  as  to  have 
impaired  its  working  efficiency,  but  their  activities  would  have 
failed  to  meet  with  the  same  response  from  the  citizen  body. 
A  people  unaccustomed  to  governmental  interference  in  their 


250       POLITICAL  SYSTEMS  IN  TRANSITION 

daily  lives  would  have  resented  the  presence  of  a  large  body 
of  paid  officials,  even  though  they  performed  precisely  the  same 
functions  as  were  enthusiastically  supported  when  performed 
by  volunteer  workers.  In  the  case  of  the  Food  Administra- 
tion the  plan  was  followed  of  inviting  each  individual  citizen 
to  become  a  member,  and  to  pledge  his  or  her  cooperation  with 
the  plans  put  forth  by  the  Government  officials  in  control.  This 
appeal  of  the  Government  to  the  voluntary  aid  both  of  groups 
and  of  individuals  not  only  helped  to  obviate  the  dangers  of  bu- 
reaucratic control  incident  to  the  assumption  of  extensive 
powers  by  the  Government,  but  helped  to  create  a  sense  of  the 
importance  of  the  individual  in  democratic  government.  It  has 
been  questioned  by  statesmen  whether  democracy  is  possible  in 
a  country  whose  size  is  so  great  that  contact  between  the  indi- 
vidual and  his  representatives  must  necessarily  be  lost.  The 
remedy  is  partly  to  be  found  in  the  continuance  and  develop- 
ment of  voluntary  associations  operating  on  principles  of  free 
cooperative  endeavor  to  meet  recognized  local  needs. 

Rights  of  the  community  against  organized  minorities. 
The  spirit  of  civic  cooperation  developed  during  the  war  by 
means  of  these  voluntary  associations,  as  well  as  the  subordina- 
tion of  local  and  individual  interests  to  the  needs  of  the  country 
as  a  whole,  is  finding  practical  application  at  the  present  mo- 
ment in  the  controversies  that  have  arisen  between  capital  and 
organized  labor  in  connection  with  certain  of  the  great  indus- 
trial establishments  of  the  country.  The  issue  is  presented 
as  a  case  of  the  rights  of  the  community  as  a  whole  against 
organized  minorities,  whether  these  latter  be  the  owners  of 
industrial  plants  acting  individually  or  in  concert,  or  the  indi- 
vidual or  federated  trades  unions  of  the  employees.  On  the 
one  hand  while  the  great  transportation  systems  have  been 
brought  under  the  direct  control  of  the  Federal  Government, 
the  industrial  corporations  have  remained  practically  uncon- 
trolled except  where  their  combinations  have  brought  them 
under  the  laws  against  monopolies  and  trusts.  The  owners  of 
the  great  steel  industries,  of  the  coal,  iron,  and  copper  mines, 


NEW  IDEALS  OF  DEMOCRACY  251 

of  the  textile  and  shoe  factories,  have  been  allowed  to  conduct 
their  business  with  only  such  regard  for  the  public  as  the 
profits  of  the  industry  and  their  individual  sense  of  responsi- 
bility might  dictate.  On  the  other  hand  organized  labor,  act- 
ing through  local  and  federated  trade  unions,  has  remained 
in  like  manner  practically  free  from  the  control  of  the  State. 
Industrial  disputes  resulting  in  strikes  and  lockouts  have  gone 
on  in  complete  disregard  of  the  community  at  large.  During 
the  period  when  the  owners  of  industry  had  the  upper  hand 
resistance  to  proposals  for  compulsory  arbitration  came  from 
that  quarter;  but  at  the  present  day  when  the  labor  unions 
are  beginning  to  realize  their  power,  resistance  to  the  control 
of  the  State  is  being  manifested  on  their  side  as  well.  In  both 
cases  the  public  at  large,  as  consumer  of  the  products  of  in- 
dustry, has  stood  by  in  a  patient  and  somewhat  stolid  mood. 
This  mood  is  now  changing  to  one  of  self-assertiveness,  and 
under  the  inspiration  of  measures  taken  by  the  Government 
during  the  war  to  control  both  capital  and  labor  the.  demand 
is  being  pressed  more  insistently  that  measures  of  compulsory 
arbitration  be  introduced  not  only  in  respect  to  what  are  known 
as  public  service  corporations,  but  in  respect  to  the  great 
industries  producing  the  more  immediate  necessities  of  life. 
Industrial  disputes  have  thus  come  to  be  distinctly  political 
problems,  to  which  a  solution  must  be  found  in  the  interest 
of  the  community  at  large.  Capital  and  labor  cannot  be  al- 
lowed to  resort  to  the  methods  of  private  combat  to  the  injury 
of  a  dependent  public.  Unless  the  welfare  of  the  State  as 
a  whole  is  to  be  given  precedence  over  that  of  any  group 
within  the  State,  democratic  government  will  have  reached 
a  condition  of  bankruptcy.^ 

Democracy  and  freedom  of  speech.     The  urgent  necessity 

^  Illustrative  cases  may  be  found  in  the  strikes  in  the  steel  mills 
and  in  the  coal  mines  in  October  and  November,  1919.  The  general 
condemnation  of  the  police  strike  in  Boston  in  September,  1919,  must 
be  explained  by  the  mistaken  methods  employed  by  the  strikers  in 
disregard  of  the  rights  of  the  community,  even  in  a  case  where  the 
substance  of  their  claim  appears  to  haw^e  been  otherwise  just. 


252       POLITICAL  SYSTEMS  IN  TRANSITION 

for  cooperation  and  complete  unity  of  national  purpose  in  time 
of  war  raised  in  an  acute  form  the  problem  of  freedom  of 
speech  in  a  democracy.  We  have  seen  the  character  of  the 
laws  passed  by  Congress  and  by  the  state  legislatures  as  dis- 
tinctly war  measures,  as  well  as  some  of  the  bills  subsequently 
introduced  along  the  lines  of  the  Federal  Sedition  Act.^ 
These  latter  measures  are  a  direct  outgrowth  of  the  war,  and 
represent  an  attempt  to  check  the  progress  of  radical  doctrines 
subversive  of  the  American  form  of  constitutional  government. 
They  have  had  the  effect  of  raising  the  issue  whether,  by  sup- 
pressing freedom  of  speech,  a  democratic  government  is  not 
repudiating  one  of  those  fundamental  principles  upon  which 
democracy  itself  is  essentially  dependent.  By  their  very  nature 
such  laws  have  to  be  drawn  in  more  or  less  general  terms, 
leaving  it  to  the  courts  to  determine  their  application  to  the 
facts  of  the  particular  case.  That  the  way  is  thus  opened  to  an 
abuse  of  power  can  scarcely  be  denied.  Where  does  criticism 
of  the  present  agents  of  government  end  and  criticism  of  the 
institutions  of  government  begin?  How  distinguish  practi- 
cally between  an  attack  upon  an  existing  law  as  a  piece  of 
partisan  and  unjust  legislation  and  an  attack  upon  the  same 
law  in  respect  to  its  binding  power?  These  are  but  instances 
of  the  legal  difficulties  which  must  be  met  by  the  courts;  and 
while  it  may  be  conceded  that  in  normal  times  the  courts  will 
be  able  to  draw  substantially  just  distinctions  between  what 
is  seditious  and  what  is  not,  the  abstract  principle  of  free- 
dom of  speech  remains  in  a  somewhat  precarious  position. 
The  old  laws  against  anarchy  made  a  clear  distinction  between 
the  expression  of  opinions  and  the  incitement  to  acts  of  vio- 
lence ;  the  new  laws  seem  to  be  directed  against  the  language 
itself  irrespective  of  its  probable  effects.  But  the  mere  ad- 
vocacy of  socialism,  syndicalism,  anarchism,  or  any  other  radi- 
cal scheme  of  reconstructing  society,  cannot  be  prohibited  with- 
out encroaching  upon  freedom  of  speech  in  its  most  elemental 
form.  The  test  must  be  not  the  ideal  proposed  by  the  revolu- 
1  Sec  above,  pp.  170,  218. 


NEW  IDEALS  OF  DEMOCRACY  253 

tionist,  but  the  means  proposed  for  reaching  that  ideal.  Vio- 
lence of  every  kind  must  be  absolutely  barred  as  a  method 
of  securing  political  ends.  Under  a  constitution  which  pro- 
vides for  majority  rule  no  inferences  from  the  abstract  right 
of  revolution  ^  can  be  allowed  to  sanction  a  resort  to  force. 
The  Syndicalist  may  be  permitted  to  attempt  to  win  over  a 
majority  to  his  program;  what  he  cannot  be  permitted  to  do 
is  to  incite  a  minority  to  seek  to  accomplish  by  force  what 
they  are  unable  to  accomplish  through  the  ballot.  So  long  as 
a  law  is  on  the  statute  books  it  must  be  obeyed;  agitation 
for  repeal  is  always  in  order;  but  until  repeal  is  effected 
through  the  forms  of  law  prescribed,  resistance  and  the  ad- 
vocacy of  resistance  cannot  be  tolerated  if  democracy  is  to 
survive. 

Democratic  control  of  foreign  affairs.  One  of  the  out- 
standing results  of  the  war  has  been  the  demand  for  a  greater 
degree  of  popular  control  over  the  administration  of  the  for- 
eign affairs  of  the  country.  Whatever  is  to  be  said  of  the 
long  delay  in  ratifying  the  treaty  of  peace  with  Germany,  it 
is  at  least  clear  that  the  unending  discussion  of  the  subject 
both  in  Congress  and  in  the  public  press  has  done  much  to 
educate  the  people  upon  questions  hitherto  largely  remote  from 
their  thoughts.  Partisan  interests  may  be  clouding  the  general 
issue,  and  the  decision  of  public  opinion  at  the  moment  may 
be  biassed  in  consequence,  but  the  ultimate  result  must  be  a 
marked  increase  of  knowledge  as  a  basis  for  future  action. 
How  soon  *'  open  diplomacy  "  can  become  a  feasible  and  safe 
method  of  conducting  the  diplomatic  relations  of  the  United 
States  with  other  countries  will  depend  upon  the  degree  to 
which  public  opinion  is  prepared  to  exercise  an  enlightened  and 
self -restrained  judgment  upon  the  delicate  problems  which  fre- 

1  An  exception  must  be  made,  of  course,  in  the  case  of  the  so-called 
"conscientious  objector"  who  refuses  obedience  to  a  law  because  it 
violates  moral  principles  which  are  to  him  a  higher  law  than  that  of 
the  state.  Such  cases  involve,  however,  a  negative  attitude  of  resist- 
ance, not  a  positive  attitude  of  aggression. 


254       POLITICAL  SYSTEMS  IN  TRANSITION 

quently  arise  between  nations.  Popular  excitement  over  ques- 
tions in  dispute  with  foreign  nations  has  more  than  once  in 
the  history  of  the  United  States  proved  dangerously  chauvin- 
istic. It  is  fundamentally  important,  therefore,  that  if  demo- 
cratic control  over  foreign  policies  is  to  prevail,  in  the  sense 
that  all  questions  at  issue  between  the  United  States  and  other 
nations  shall  be  placed  in  detail  before  the  public  during  the 
negotiations,  there  must  be  a  wider  and  more  accurate  know- 
ledge of  the  facts  and  principles  involved  than  has  hitherto 
prevailed.  Ignorance  not  only  lends  itself  to  selfish  and  mis- 
taken conceptions  of  national  advantage,  but  it  has  the  far 
more  serious  weakness  of  offering  no  resistance  to  the  appeal 
of  the  demagogue  to  the  suspicions  and  hatreds  which  are 
still  provoked  by  the  rivalries  of  the  great  nations.  The  hope 
of  international  peace  rests  in  the  wider  application  of  that 
rule  of  law  which  forms  the  guiding  principle  of  our  national 
life  as  a  federation  of  semi-autonomous  States.  For  the  time 
being  there  are  many  problems  to  which  it  is  difficult  to  apply 
abstract  principles,  and  which  can  only  be  settled  by  such 
measures  of  expediency  as  the  wisest  statesmanship  can  devise. 
When  the  citizen  body  of  a  democracy  has  given  proof  that 
it  can  weigh  facts  dispassionately  and  forego  immediate  ad- 
vantage in  favor  of  the  general  rule  of  law,  it  will  be  in  order 
for  it  to  take  more  directly  in  hand  the  decision  of  its  foreign 
policies.^ 

1  For   the   difficulties    attending   a   national   referendum   upon   such 
questions,  see  below,  p.  281. 


CHAPTER  XI 

THE   PROGRAM   OF   POLITICAL   RECONSTRUCTION 

IN  the  preceding  chapters  in  which  the  organization  of  the 
Federal  Government  and  the  extension  of  its  activities  to 
meet  the  demands  of  the  war  were  described,  no  attempt 
was  made  to  do  more  than  set  forth  the  actual  changes  intro- 
duced into  the  normal  functions  of  the  Government.  In  like 
manner  the  functions  performed  by  the  separate  state  govern- 
ments were  presented  merely  in  their  specific  character  as 
war  measures.  But  it  is  clear  to  all  observers  that  the  war  did 
far  more  than  merely  bring  about  certain  temporary  and  ex- 
pedient changes  in  the  organization  of  the  Government  and 
the  scope  of  its  activities,  some  of  which  are  to  be  undone 
as  soon  as  possible  after  the  conclusion  of  peace.  Numer- 
ous questions  were  raised  at  one  time  or  another  during  the 
course  of  the  conflict,  and  the  problem  of  the  reconstruction 
of  our  political  institutions  concerns  not  merely  the  retention 
or  the  rejection  of  this  or  that  change  actually  introduced, 
but  it  embraces  the  further  question  of  the  advisability  of 
pushing  forward  in  the  direction  of  repairing  the  many  other 
weak  places  in  our  political  machinery  which  were  revealed 
by  the  war.  Owing  to  the  urgent  need  of  haste  and  to  the 
stress  of  other  more  immediate  demands,  it  was  impossible 
during  the  war  not  merely  to  repair  those  defects  but  even 
so  much  as  to  discuss  the  proper  methods  of  undertaking  the 
task.  But  with  the  return  of  peace  the  problems  presented 
by  those  defects  are  now  before  us  and  we  may  consider  them 
in  one  sense  as  a  direct  heritage  of  the  war.  Many  of  them 
were,  it  is  true,  discussed  as  measures  of  reform  in  the  years 
preceding  the  war;  they  have  now  become  urgent  measures 
of  reconstruction  which  the  war  showed  us  can  no  longer 
wisely  be  left  to  academic  discussion. 

255 


256       POLITICAL  SYSTEMS  IN  TRANSITION 

The   problem   of   centralization   versus   decentralization. 

The  first  of  the  great  issues  of  political  reconstruction  to 
which  the  war  has  given  a  new  meaning  and  importance  is 
the  question  of  a  more  logical  division  of  power  between  the 
Federal  Government  and  the  separate  States.^  We  have  seen 
that  the  States  were  called  upon  during  the  war  to  yield  to 
the  encroachments  upon  their  authority  and  jurisdiction  in- 
volved in  the  assumption  by  the  Federal  Government  of  the 
new  functions  which  the  demands  of  the  war  forced  it  to 
undertake.  If  the  past  history  of  the  country  may  be  taken 
as  an  indication  of  future  action  it  is  not  likely  that  the 
Federal  Government  will  surrender  the  full  measure  of  the 
temporary  enlargement  of  its  authority.  Step  by  step  during 
the  130  years  of  its  existence  the  Federal  Government  has 
extended  its  powers  beyond  its  original  confines,  still  keep- 
ing within  the  letter  of  its  constitutional  restrictions,  but  reach- 
ing out  to  meet  new  conditions  and  new  emergencies  not  con- 
templated at  the  time  of  its  creation.  The  most  urgent  of 
these  new  conditions  and  emergencies  were  those  created  by 
the  present  war,  and  under  its  stress  an  extension  of  Federal 
power  not  hitherto  contemplated  by  the  most  ardent  federalist 
was  acquiesced  in  by  the  States  without  complaint  or  protest. 
It  must  be  observed,  however,  that  not  all  of  the  war  powers 
assumed  by  Congress  and  the  President  were  an  encroach- 
ment upon  the  sphere  of  action  of  the  States.  Many  of  the 
new  functions  represent  activities  of  government  which  by 
their  very  nature,  being  national  in  scope,  were  beyond  the 
control  of  the  individual  States,  yet  which  had  not  been  ex- 
pressly or  impliedly  delegated  to  the  Federal  Government. 
President  Roosevelt  once  emphasized  the  fact  that  the  constitu- 
tional division  between  the  powers  "  delegated  "  to  the  National 
Government  and  those  **  reserved "  to  the  States  had  left 
vacancies  and  blanks  between  the  prescribed  limits  of  national 
jurisdiction  and  the  possible  limits  of  individual  state  action; 

^  For  the  present  constitutional  basis  of  this  question  and  its  his- 
torical background,  see  above,  pp.  18-20. 


.T>ROGRAM  OF  POLITICAL  RECONSTRUCTION    257 

and  it  was  his  belief  that  the  National  Government  had  power 
to  fill  these  gaps,  so  that  no  person  or  corporation  should 
remain  outside  the  control  of  the  law.  The  recent  war  made 
it  possible  for  the  Federal  Government,  in  the  exercise  of 
strictly  war  powers,  to  enter  a  large  part  of  this  unoccupied 
legislative  field.  With  the  return  of  peace  these  war  powers 
must  now  be  formally  relinquished ;  but  the  tenacity  with  which 
the  Federal  Government  has  held  on  to  them,  after  the  cessa- 
tion of  actual  hostilities,  in  order  to  meet  the  emergencies  of 
the  period  of  reconstruction  raises  the  very  definite  issue 
whether  steps  may  not  be  taken  to  grant  to  the  Federal  Gov- 
ernment by  formal  constitutional  amendment  the  powers  which 
by  general  consent  it  urgently  needs. 

Permanent  place  of  the  States  in  the  Federal  Government. 
The  question  of  the  extension  of  the  powers  of  the  Federal 
Government  might,  indeed,  be  anticipated  by  an  inquiry  as  to 
whether  it  is  desirable  to  retain  at  all  the  present  system  of 
forty-eight  separate  state  governments  with  their  elaborate 
organizations  of  legislative,  executive,  and  judicial  bodies 
paralleling  the  national  organization.  To  a  foreign  observer, 
unacquainted  with  the  traditions  of  American  political  growth, 
the  presence  of  these  distinct  political  units  scattered  over  a 
country  where,  except  in  isolated  corners,  the  economic  and 
social  life  of  the  people  is  approximately  uniform  must  seem 
a  needless  multiplication  of  governing  officials  and  an  ex- 
travagant expenditure  of  public  funds.  But  apart  from  the 
strength  of  the  American  tradition  of  state  rights  in  the 
older  sections  of  the  country,  it  would  seem  that  the  American 
people  as  a  whole  are  convinced  that  there  is  a  distinct  func- 
tion for  these  separate  state  units  to  perform  in  the  sphere 
of  local  self-government,  and  that  this  function  is  worth  the 
price  in  money  and  in  admitted  inconvenience  in  certain  busi- 
ness and  social  relations.  This  feeling  has  been  strengthened 
rather  than  weakened  as  a  result  of  the  experiences  of  the 
war.  The  assumption  of  new  powers  by  the  Federal  Govern- 
ment   was    paralleled    by    an    administrative    decentralization 


258       POLITICAL  SYSTEMS  IN  TRANSITION 

which  threw  upon  state  agencies  the  task  of  adjusting  to  local 
conditions  the  uniform  provisions  of  the  federal  law.  As 
we  have  seen,  the  successful  execution  of  the  Selective  Service 
Act  was  due  in  large  part  to  the  local  draft  boards  which 
acted  as  intermediaries  between  the  Provost  Marshal  General 
and  the  individual  citizen.  For  the  first  time  since  the  adop- 
tion of  the  Constitution  the  Federal  Government  departed  from 
its  procedure  of  carrying  out  its  laws  by  its  own  appointed 
agents.  As  a  result  of  this  experience  the  Secretary  of  War 
was  able  to  point  to  "  a  demonstration  of  the  fact  that  there 
is  in  the  state  governments  a  relation  so  vital  to  our  national 
strength,  a  relation  so  indispensable  in  times  of  emergency  or 
disaster  of  any  sort,  a  relation  so  essential  in  times  of  threat- 
ened difficulty,  a  relation  so  indispensable  to  the  aggregate,  that 
we  know  as  the  United  States  that  from  now  on  the  dignity 
and  importance  of  the  state  government  can  never  be  ques- 
tioned successfully  as  an  essential  part  of  our  institutional 
system."  ^  As  a  practical  issue,  therefore,  the  proposal  to  dis- 
card as  outworn  the  machinery  of  state  government  may  be 
dismissed  without  further  comment.  But  this  still  leaves  un- 
settled the  question  whether  a  number  of  the  powers  now  ex- 
ercised by  the  States  could  not  be  transferred  to  exclusive 
national  control. 

New  powers  needed  by  the  Federal  Government.  As  a 
preliminary  step  towards  transferring  certain  of  the  powers 
of  the  States  to  the  Federal  Government,  an  amendment  to  the 
Constitution  should  be  adopted  conferring  upon  the  Federal 
Government  the  power  to  meet  those  problems  of  national 
importance  which  transcend  the  legislative  powers  of  the  States 
and  yet  which  are  not  within  the  present  enumerated  powers 
of  Congress.  It  is  difficult  to  draw  up  the  precise  text  of  such 
an  amendment,  but  its  general  substance  can  at  least  be  indi- 
cated. As  a  tentative  proposal  it  is  suggested  that  the  amend- 
ment might  be  framed  along  lines  granting  to  Congress  the 

1  Address  before  the  Governors'  Conference  at  Annapolis,  I9i8» 
"  Proceedings,"  p.  25. 


PROGRAM  OF  POLITICAL  RECONSTRUCTION    259 

power  to  assume  direct  control  over  all  matters  in  which  the 
needs  either  of  the  nation  as  a  whole  or  of  any  part  of  it 
cannot  be  attained  by  the  individual  action  of  the  several  States. 
These  needs  may  in  some  cases  arise  from  the  demand  for 
legislation  protecting  the  people  of  one  State  against  acts  done 
or  conditions  existing  in  another  State,  and  in  other  cases 
they  may  arise  from  the  demand  for  positive  legislation  to 
promote  the  national  welfare  under  conditions  which  cannot 
be  met  by  isolated  state  laws.  For  some  years  past  Congress 
has  been  attempting  to  assume  the  powers  of  a  national  legis- 
lature by  a  broad  interpretation  of  its  powers  over  commerce 
between  the  States.  The  Anti-trust  Act  of  1890  is  a  familiar 
example.  By  including  within  the  term  "  commerce  "  not  only 
the  carriers  of  commerce  and  the  articles  transported,  but  the 
business  agreements  by  which  goods  were  transported  or  with- 
held from  transportation,  it  was  possible  for  Congress  to  for- 
bid contracts  or  combinations  in  restraint  of  trade  or  com- 
merce between  the  States  and  bring  under  its  control  the  great 
corporations  whose  activities  were  beyond  the  reach  of  the 
individual  States.  But  in  this  attempt  to  protect  the  public 
against  the  power  of  combinations  of  capital  to  fix  prices  and 
defeat  the  normal  operation  of  the  law  of  supply  and  demand 
Congress  was  hampered  by  the  fact  that  it  could  not  act 
directly  upon  the  object  of  offense,  but  could  only  seek  to  reach 
it  through  the  indirect  exercise  of  its  control  over  the  channels 
of  interstate  trade.  Lack  of  power  to  regulate  the  manufacture 
of  articles  and  the  incorporation  of  business  companies  in  that 
capacity  prevented  Congress  from  applying  the  most  direct  and 
effective  remedy.  Duplicate  federal  and  state  charters  were 
a  possible  but  not  a  practicable  solution.  In  the  case  of  the 
great  insurance  companies  doing  business  in  a  number  of 
States,  Congress  has  been  unable  to  take  any  action  at  all, 
owing  to  an  unfortunate  decision  of  the  Supreme  Court  that 
the  business  of  insurance  was  not  commerce  and  therefore  not 
subject  to  the  Federal  Government. 

Control  over  profiteering.    At  the  present  day  the  need  of 


26o      POLITICAL  SYSTEMS  IN  TRANSITION 

more  comprehensive  powers  on  the  part  of  Congress  is  sharply- 
felt  in  three  more  or  less  related  fields.  In  the  first  place  there 
is  the  nation-wide  call  upon  Congress  to  place  restrictions 
upon  profiteering  in  food,  fuel,  clothing  and  other  necessities 
of  life.  So  long  as  the  state  of  war  technically  continues  it 
is  possible  for  Congress  to  use  the  powers  of  the  Food  and 
Fuel  Control  Act  and  its  amendments  ^  to  prevent  hoarding 
and  manipulation  of  supplies;  and  it  was  equally  within  the 
power  of  Congress  to  fix  the  price  of  sugar  during  the  recent 
shortage,  as  the  price  of  wheat  was  fixed  by  the  original  Act. 
But  with  the  formal  close  of  the  war  and  the  necessary  aban- 
donment by  Congress  of  its  powers  there  will  remain  only 
the  power  over  interstate  commerce  as  a  possible  means  of 
meeting  the  situation.  While  its  powers  over  commerce  will 
enable  Congress  to  control  restraints  upon  the  free  flow  of 
trade  between  the  States,  they  will  not  be  adequate  to  prevent 
the  hoarding  and  sale  at  exorbitant  prices  of  goods  within  the 
boundaries  of  a  single  State.  State  legislation  will  be  needed 
to  supplement  federal  legislation,  and  as  in  other  such  cases 
the  offenders  may  succeed  in  slipping  through  the  gaps. 

Control  over  nation-wide  strikes.  In  the  second  place  the 
legal  difficulty  experienced  by  the  President  on  the  occasion 
of  the  strike  in  the  coal  mines  in  November,  19 19,  shows  the 
need  on  the  part  of  the  Federal  Government  of  more  direct 
power  to  meet  similar  emergencies  in  the  future.  Orders  were 
issued  on  October  15  by  the  executive  officers  of  the  United 
Mine  Workers  that  the  strike  should  begin  on  November  ist. 
Conferences  between  representatives  of  the  owners  and  of  the 
miners,  called  by  Secretary  of  Labor  Wilson,  failed  to  reach 
an  agreement,  and  on  October  24th  the  President  issued  a  state- 
ment in  which  the  proposed  strike  was  described  as  "  unjusti- 
fiable "  and  "  unlawful "  because  of  its  effects  upon  the  pro- 

1  The  amendment  approved  October  22,  1919,  extends  the  provi- 
sions of  the  original  Act  so  as  to  cover  foods,  feeds,  wearing  apparel, 
fuel,  fertilizers,  tools,  utensils,  implements,  machinery  and  equipment 
required  in  the  production  of  foods,  feeds,  and  fuel. 


PROGRAM  OF  POLITICAL  RECONSTRUCTION     261 

duction  and  distribution  of  the  necessaries  of  life.  The 
Attorney  General  thereupon  announced  the  intention  of  the 
Government  to  establish  the  illegality  of  the  strike  under  the 
circumstances,  without  however  impairing  the  general  right 
to  strike.  Accordingly  the  Government  obtained  from  the 
Federal  District  Court  at  Indianapolis  an  order  restraining  the 
union  officials  "  from  doing  any  further  act  whatsoever  to 
bring  about  or  continue  in  effect  the  above-described  strike." 
The  request  for  this  order  was  based  upon  the  provisions  of 
the  Food  and  Fuel  Control  Act.  The  order  was  confirmed  on 
November  8th,  and  a  temporary  injunction  was  granted  on  the 
ground  that  the  miners  had  been  guilty  of  a  conspiracy  under 
the  provisions  of  the  Act.  The  officials  of  the  United  Mine 
Workers  were  at  the  same  time  directed  to  withdraw  the  strike 
order.  Three  days  later  the  order  was  canceled.  The  strike 
leaders,  however,  protested  against  the  application  to  them  of 
the  provisions  of  an  Act  which  was  based  upon  the  technical 
continuance  of  a  war  which  had  ceased  in  actual  fact.  Here 
again,  the  formal  close  of  the  war  will  throw  the  Govern- 
ment back  upon  its  inadequate  powers  over  interstate 
commerce.^ 

Control  over  the  raw  materials  of  industry.  A  further  in- 
stance of  the  need  of  new  powers  to  meet  national  problems 
is  to  be  found  in  the  experience  of  the  Government  during 
the  war  in  regard  to  the  control  of  the  raw  materials  of  in- 
dustry. We  have  seen  that  the  Priorities  Board  of  the  War 
Industries  Board,  by  classifying  the  industries  of  the  country 
according  to  their  importance  for  the  prosecution  of  the  war 
and  for  the  imperative  needs  of  the  public  and  by  assigning 
to  them  the  necessary  supplies  on  a  rationing  basis,  prevented 

^  It  should  be  observed  that  the  exemption  of  labor  unions  from 
the  provisions  of  the  Sherman  Anti-trust  Act,  contained  in  the  Clay- 
ton Act,  can  be  undone  by  Congress,  but  this  still  leaves  it  doubtful 
whether  the  power  over  commerce  can  be  used  to  defeat  a  strike  con- 
ducted by  orderly  methods  for  the  purpose  of  redressing  grievances, 
whatever  its  effects  upon  the  industrial  life  of  the  nation. 


262       POLITICAL  SYSTEMS  IN  TRANSITION 

what  might  otherwise  have  been  a  demoralizing  competition 
between  essential  and  non-essential  industries.  A  similar  sys- 
tem of  priorities  was  established  by  the  Food  and  Fuel  admin- 
istrations and  by  the  Railroad  administration  in  respect  to 
transportation.  The  indispensable  work  performed  by  these 
priority  boards  is  sufficient  to  demonstrate  the  advantages  of 
having  recourse  to  similar  methods  of  control  should  an  eco- 
nomic crisis  again  demand  an  interference  with  the  normal 
law  of  supply  and  demand.  At  the  time  of  the  coal  strike 
the  President  issued  an  order  authorizing  the  Fuel  Adminis- 
trator to  issue  such  regulations  in  respect  to  the  production, 
sale,  distribution,  apportionment,  storage  and  use  of  coal  as 
might  in  his  judgment  be  necessary  to  prevent  profiteering  or 
the  increase  of  prices  during  the  emergency.  Here  also,  it  is 
clear  that  Congress,  deprived  of  its  war  powers,  will  be  forced 
to  rely  upon  its  ordinary  powers  over  interstate  commerce; 
and  it  is  more  than  doubtful  whether  so  comprehensive  a  con- 
trol based  upon  those  powers  would  be  constitutional. 

Surrender  of  state  control  over  the  instrumentalities  of 
commerce.  We  may  now  turn  to  the  more  difficult  problem 
of  deciding  whether  certain  powers  which  have  in  the  past 
been  recognized  as  belonging  to  the  several  States  should  be 
transferred  to  the  Federal  Government  for  the  sake  of  greater 
efficiency  and  a  more  uniform  administration.  It  would  carry 
us  too  far  afield  from  our  main  problem  to  discuss  all  the 
details  of  so  complex  a  question,  but  a  few  leading  principles 
may  be  offered  by  way  of  a  tentative  solution  which  is  within 
practicable  bounds.  In  the  first  place  it  would  seem  that  the 
States  should  be  called  upon  to  surrender  their  local  control 
of  the  great  channels  of  transportation  and  communication 
which  are  by  their  very  nature  national  institutions.  Before 
the  war  a  system  of  joint  control  was  in  operation,  in  ac- 
cordance with  which  the  Federal  Government  regulated  that 
part  of  the  business  of  the  companies  which  concerned  com- 
merce between  the  States,  while  the  state  governments  regulated 
the  local  services  performed  by  the  companies.     The  result  was 


PROGRAM  OF  POLITICAL  RECONSTRUCTION    263 

a  continuous  conflict  of  jurisdiction  between  the  Interstate 
Commerce  Commission  of  the  Federal  Government  and  the 
public  service  commissions  of  the  several  States.  For  it  is 
clear  that  no  hard  and  fast  line  could  be  drawn  between  serv- 
ices which  crossed  state  lines  and  services  which  were  per- 
formed solely  within  them.  During  the  war  the  state  public 
service  commissions  surrendered  their  measure  of  control  to 
the  Federal  Government,  and  the  national  and  local  functions 
of  the  railway,  telegraph  and  telephone  companies  were  per- 
formed as  a  single  service.  The  restoration  of  the  latter  com- 
panies to  their  former  owners  revived  the  activities  of  the 
state  commissions,  and  in  that  respect  matters  now  stand  where 
they  were  before  the  war.  Greater  difficulty  is  being  ex- 
perienced, as  will  be  seen  later,  in  restoring  the  railways  to 
their  former  owners,  but  of  the  many  solutions  for  the  prob- 
lem practically  all  contemplate  either  that  the  local  control 
of  the  States  be  abandoned  and  that  there  be  substituted  in 
its  place  a  regional  grouping  of  the  railroads  based  upon  the 
organization  of  the  railway  systems  and  not  upon  artificial 
state  lines,  or  else  that  the  federal  control  be  broadened  to  a 
greater  or  less  degree.^ 

Cooperation  as  a  substitute  for  constitutional  unity.  In 
the  second  place  it  is  proposed  that  a  more  consistent  scheme 
of  cooperation  should  be  worked  out  on  the  one  hand  between 
the  States  as  a  whole  and  the  Federal  Government,  and  on 
the  other  hand  between  the  separate  States  themselves.  At 
present  the  jurisdiction  of  the  Federal  and  state  Governments 
is  not  at  all  points  mutually  exclusive,  and  in  a  number  of 
matters  federal  and  state  regulations  exist  side  by  side,  the 
former  taking  precedence  in  cases  of  conflict  but  not  over- 

1  It  is  of  course  compatible  with  such  a  surrender  of  state  control 
that  some  plan  of  administrative  decentralization  should  be  worked 
out  in  accordance  with  which  representation  should  be  given  to  mem- 
bers of  the  public  service  commissions  of  the  States  upon  the  regional 
commissions  administering  the  different  railway  systems,  so  that  the 
local  needs  of  the  States  could  be  adequately  presented  and  a  degree 
of  local  supervision  maintained. 


264      POLITICAL  SYSTEMS  IN  TRANSITION 

ruling  the  latter  when  restricted  to  strictly  local  affairs.  But 
in  these  instances  of  overlapping  jurisdiction  there  is  a  com- 
plete lack  of  cooperation  between  the  two  governing  agencies. 
No  systematic  attempt  has  been  made  to  bring  the  state  laws 
with  respect,  for  example,  to  pure  food  and  drugs  into  harmony 
with  the  federal  law  ,and  thereby  secure  the  advantages  of  a 
unified  administration.  A  more  recent  illustration  of  the  pos- 
sibilities of  cooperation  is  to  be  found  in  the  inclusion  by  Con- 
gress of  stolen  automobiles  among  articles  which,  if  trans- 
ported from  one  State  to  another,  will  bring  the  offender  under 
the  federal  law.  Here  the  Federal  and  state  Governments 
might  well  work  out  a  plan  of  concerted  action  which  would 
be  far  more  effective  than  isolated  individual  efforts  to  enforce 
the  law.  In  like  manner  cooperation  between  the  States  them- 
selves by  the  adoption  of  mutually  protective  legislation  would 
be  greatly  to  their  advantage  in  cases  where  the  Federal  Gov- 
ernment is  constitutionally  unable  to  give  its  assistance. 
Under  present  conditions,  for  example,  when  a  fugitive 
criminal  escapes  from  one  State  into  another  the  authorities 
of  the  State  in  which  the  offense  was  committed  have  no  power 
to  pursue  the  offender  across  the  state  line  and  can  only  call 
upon  the  authorities  of  the  other  State  to  arrest  the  offender 
pending  the  presentation  by  the  governor  of  a  formal  request 
for  extradition.  Moreover,  there  are  numerous  matters  in 
which  the  mutual  convenience  of  the  States  would  be  greatly 
furthered  by  the  adoption  of  general  legislation  in  place  of 
the  present  individual  state  laws.  Lender  the  Constitution  the 
wide  field  of  the  business  relations  of  daily  life  is  within  the 
legislative  jurisdiction  of  the  several  States.  Contracts,  title 
to  real  and  personal  property,  wills,  corporation  charters,  are 
but  the  beginning  of  the  list  of  interests  for  the  regulation  of 
whiqh  there  exist  forty-eight  bodies  of  state  law  either  in  codi- 
fied form  or  in  the  decisions  of  the  courts.  The  inconvenience 
resulting  has  so  often  been  complained  of  that  it  is  difficult 
for  the  layman  to  understand  why  the  remedy  has  been  so 
long  delayed.     The  present  uniform  negotiable  instruments  law 


PROGRAM  OF  POLITICAL  RECONSTRUCTION    265 

is  an  object  lesson  in  the  possibility  of  cooperation  between 
the  States  in  these  matters,  but  thus  far  the  efforts  made  in 
various  quarters  to  secure  further  uniform  laws  have  not 
met  with  any  notable  success.  Private  agencies  of  coopera- 
tion, such  as  the  annual  meetings  of  the  state  bar  associations, 
are  however,  numerous,  and  it  would  seem  to  be  only  a  ques- 
tion of  time  until  public  opinion  shall  be  sufficiently  educated 
to  bring  the  necessary  pressure  to  bear  upon  the  state  govern- 
ments to  take  action. 

The  sphere  of  local  autonomy.  By  contrast  with  these 
business  relations  there  are  other  questions  of  social  policy 
which  bear  upon  the  personal  habits  of  the  people,  their  stand- 
ards of  moral  conduct,  and  their  ideals  of  community  welfare. 
Here  it  is  generally  admitted  that  local  state  autonomy  should 
continue  to  prevail,  modified  only  by  such  measures  of  coopera- 
tion as  are  called  for  by  the  mutual  convenience  of  the  States. 
The  regulation  of  the  hours  and  conditions  of  labor,  of  mini- 
mum living  wages,  of  the  liability  of  employer  to  employee, 
the  control  of  the  use  of  intoxicating  liquors,^  the  censorship 
of  moving-pictures,  the  direction  of  education  and  the  support 
of  educational  institutions,  would  seem  to  fall  primarily  within 

1  It  is  of  interest  to  note  that  the  i8th  Amendment  prohibiting  the 
manufacture  and  sale  of  intoxicating  liquors  represents,  with  the  ex- 
ception of  the  abolition  of  slavery,  the  first  transfer  from  state  to 
federal  control  of  a  matter  relating  to  the  personal  habits  of  the 
people.  The  Amendment  contains,  however,  a  provision  giving  to  the 
several  States  a  power  concurrent  with  that  of  the  Federal  Govern- 
ment to  enforce  the  Amendment  by  appropriate  legislation.  It  is 
difficult  to  forecast  what  interpretation  the  courts  will  place  upon  this 
provision,  which  is  an  anomaly  in  American  constitutional  law. 

On  June  7,  1920,  a  decision  was  handed  down  by  the  Supreme  Court 
in  which  the  court,  while  holding  that  the  constitutional  amendment  had 
been  legally  adopted  and  was  in  every  respect  effective,  interpreted  the 
phrase  "  concurrent  power  "  as  not  reserving  to  the  States  any  express 
right,  equal  to  that  of  the  National  Government,  in  the  enforcement 
of  the  amendment.  The  result  was  to  invalidate  the  various  state 
laws  interpreting  the  word  "  intoxicating  "  more  liberally  than  had  been 
(lone  in  the  one-half  of  one  per  cent,  prescription  of  the  Volstead  Act. 


266      POLITICAL  SYSTEMS  IN  TRANSITION 

the  control  of  the  units  of  state  government,  or  within  the 
control  of  local  municipal  officials  by  delegation  from  the  state 
government.  So  also,  measures  of  social  relief,  such  as  in- 
surance against  sickness,  unemployment,  and  old  age,  and  loans 
in  aid  of  farm  improvements  should  be  based  upon  local  rather 
than  national  initiative.  It  is  not  denied,  of  course,  that  more 
immediate  and  efficient  results  might  be  obtained  by  a  common 
national  policy  in  these  matters;  but  preference  is  here  given 
to  individual  state  action  on  the  principle  that  the  local  com- 
munities know  best  the  conditions  which  the  law  is  intended 
to  overcome  and  their  cooperative  support  is  vital  to  the  per- 
manent success  of  reforms  of  this  character.  The  Federal 
Government  may  continue  to  act  as  an  agency  for  the  diffusion 
of  information,  following  the  present  policy  of  several  of  the 
administrative  departments  in  issuing  bulletins  of  an  educa- 
tional character  dealing  with  subjects  within  their  range,  but 
it  should  not  attempt  to  create  its  own  agencies  for  the  further- 
ance of  its  plans  or  assume  to  control  rather  than  to  guide. 
The  problem  of  federation.  Federation  as  opposed  on  the 
one  hand  to  complete  centralization  of  power  and  on  the  other 
hand  to  isolated  independence  is,  indeed,  the  great  political  prob- 
lem of  the  age.  It  is  urgently  pressing  its  claims  as  the  solu- 
tion of  the  continued  territorial  integrity  of  many  of  the  great 
States  of  the  world,  and  the  wisdom  of  statesmen  is  being  taxed 
to  discover  that  just  apportionment  of  governmental  power 
which  will  preserve  unity  of  empire  without  denying  the  claims 
of  local  autonomy.^  In  some  cases  the  movement  was  already 
on  foot  before  the  war  and  the  war  merely  gave  a  new  impetus 
to  it ;  in  other  cases  the  war  accomplished  directly  what  it 
might  otherwise  have  taken  years  to  accomplish.  Great  Britain 
is  faced  with  the  question  in  a  two-fold  form.  There  is  the 
demand  on  the  part  of  the  great  self-governing  colonies  for 
a  fight  to  sit  in  the  councils  of  the  empire,  and  there  is  the 

1  The  same  problem  presents  itself  on  a  larger  scale  as  a  solution 
of  the  relations  between  the  nations  themselves  as  members  of  the 
larger  international  community.     See  below,  p.  305. 


PROGRAM  OF  POLITICAL  RECONSTRUCTION     267 

proposal,  at  present  under  consideration  by  a  parliamentary 
committee,  of  establishing  local  legislatures  for  England,  Scot- 
land, and  Ireland,  not  as  a  matter  of  meeting  the  imperative  de- 
mands of  self-determination,  except  in  the  case  of  Ireland,  but 
as  a  means  of  decentralizing  authority  and  thus  securing  a 
government  at  once  more  democratic  and  more  effective. 
France,  as  we  have  seen  in  an  earlier  chapter,  is  working  upon 
a  plan  of  administrative  decentralization  which  may  break  up 
the  close  unification  of  authority  in  Paris.  Germany  has  evaded 
for  the  time  the  issue  of  recreating  the  old  political  units  which 
were  absorbed  into  Prussia  against  their  will,  but  the  problem 
undoubtedly  remains  to  be  solved  upon  a  federal  basis  before 
the  new  republic  can  become  stable.  Austria-Hungary,  though 
dismembered  for  the  present,  must  ultimately  be  driven  to 
create  some  loose  bond  of  union  with  her  neighbors  north, 
east,  and  south.  Russia  is  at  present  in  the  throes  of  a  civil 
war  in  which  the  autonomy  of  regions  of  the  country  is  play- 
ing almost  as  important  a  part  as  the  antagonism  of  classes. 
By  contrast,  the  Jugoslav  Federation  represents  an  attempt  to 
create  a  central  government  to  meet  the  interests  of  States 
which  are  unwilling  to  sacrifice  completely  the  rights  of  self- 
government  demanded  by  their  history  and  traditions.  It  is 
an  interesting  problem  in  the  study  of  comparative  government 
that  the  United  States  should  at  the  present  time  be  tending 
towards  a  greater  centralization  of  power  at  Washington  when 
other  great  nations  are  seeking  a  solution  of  their  problems  in 
a  greater  decentralization. 

Reorganization  of  the  Federal  Government.  Next  in 
order  to  the  problem  of  drawing  in  a  clearer  and  more  logical 
way  the  dividing  line  between  the  powers  of  the  Federal  Gov- 
ernment and  those  of  the  several  States  is  the  problem  of  the 
reorganization  of  the  Federal  Government  as  a  separate  agency. 
It  was  pointed  out  in  an  earlier  chapter  that  the  system  of 
checks  and  balances  was  deliberately  introduced  into  the  Con- 
stitution of  the  United  States  to  accomplish  purposes  desired 
alike  by  conservatives  and  radicals.     That  the  system  is  not  a 


268       POLITICAL  SYSTEMS  IN  TRANSITION 

logical  one,  based  upon  sound  principles  of  administrative  or- 
ganization, no  one  can  now  deny;  that  it  would  work  ineffi- 
ciently even  in  the  case  of  a  government  far  less  complex  than 
our  present  one  might  have  been  predicted ;  that  the  conditions 
under  which  the  Constitution  was  framed  have  completely 
changed,  and  that  a  system  which  was  designed  for  one  pur- 
pose is  being  made  to  serve  another  for  which  it  is  unfitted,  is 
a  fact  of  daily  observance.  It  remained  for  the  war,  with  its 
record  of  a  year  and  a  half  of  ill-concealed  friction  and  ineffi- 
ciency to  impress  upon  us  the  need  of  seriously  setting  about  the 
task  of  reconstruction.  The  problem  of  the  moment  is  not 
whether  greater  cooperation  should  be  sought  between  the  legis- 
lative and  executive  departments,  but  by  what  means  that  co- 
operation can  be  attained.  Must  a  thoroughgoing  alteration  be 
planned  and  the  Constitution  amended  so  as  to  put  it  into  effect, 
or  is  it  possible  to  secure  a  satisfactory  remedy  which  will  at 
once  cure  the  more  serious  defects  of  our  system  of  govern- 
ment and  yet  leave  intact  the  constitutional  relations  between 
the  departments  of  the  Government? 

Relations  between  Congress  and  the  President.  The  con- 
troversy in  the  Senate  attending  the  passage  of  the  Overman 
Act  ^  may  be  taken  as  a  typical  illustration  of  the  relations  be- 
tween Congress  and  the  Executive.  The  President  was,  as 
we  have  seen,  dependent  in  the  exercise  of  his  executive  powers 
upon  the  action  of  Congress,  and  could  but  stand  by  impatiently 
until  the  necessary  legislation  was  passed.  If  Congress  dif- 
fered with  him  as  to  the  advisability  of  a  particular  measure,  he 
could  present  his  views  in  person  or  through  the  mediation  of 
a  member  of  the  committee  in  charge  of  the  bill ;  but  he  had 
no  permanent  or  regular  channel  of  communication  with  the 
two  bodies.  Had  the  United  States  been  hard  pressed  at  the 
time  of  its  entrance  into  the  war  the  delays  experienced  in 
gctti^^g  Congress  to  pass  the  necessary  legislation  would  have 
been  acutely  felt.  It  was,  of  course,  to  be  expected  that  Con- 
gress should  debate  long  before  adopting  so  important  a  meas- 

1  See  above,  p.  193.  ^ 


PROGRAM  OF  POLITICAL  RECONSTRUCTION    269 

ure  as  the  Selective  Service  Act,  which  marked  a  striking  de- 
parture from  the  traditions  of  the  people  and  which  three  years 
before  would  have  been  considered  as  utterly  out  of  the  question 
in  a  war  not  fought  for  the  immediate  defense  of  the  soil  of  the 
United  States.  But  other  measures  in  which  policies  of  lesser 
moment  were  involved  were  unduly  delayed,  or  even  completely 
side-tracked,  either  because  Congress  was  distrustful  of  the 
executive  department  and  unwilling  to  surrender  to  it  the 
sweeping  powers  it  requested,  or  else  because  Congress,  not 
being  immediately  responsible,  failed  to  realize  the  urgent  need 
of  the  measures  called  for  by  the  Executive.  Thus  Congress 
allowed  itself  to  play  the  ordinary  game  of  partisan  and  pro- 
vincial politics  at  a  time  when  every  hour's  delay  increased  the 
danger  that  the  war  might  be  won  by  Germany  before  the 
forces  of  the  United  States  could  be  put  into  the  field.  No 
doubt  a  higher  degree  of  statesmanship  on  the  part  of  Congress 
and  greater  tact  on  the  part  of  the  President  might  have  facili- 
tated tlie  removal  of  these  human  elements  of  obstruction.  But 
the  fact  that  they  existed  at  all  makes  pertinent  the  inquiry 
whether  the  grave  danger  which  they  presented  in  time  of  war 
cannot  rouse  us  to  remove  the  standing  obstacle  they  form  to 
efficient  government  in  time  of  peace. 

Radical  changes  undesirable.  The  plans  suggested  by 
which  a  permanent  bond  of  unity  might  be  created  between  the 
Executive  and  Congress  vary  all  the  way  from  such  mild  pro- 
posals, as  that  the  heads  of  the  administrative  departments 
should  be  included  among  the  members  of  the  committees  in 
Congress  which  deal  with  their  respective  fields  of  administra- 
tion,^ to  such  radical  proposals  as  that  of  transferrmg  the  initia- 
tive in  legislation  to  the  executive  department  and  making  the 
members  of  the  President's  cabinet  the  chairmen  of  the  com- 
mittees in  Congress.     With  respect  to  the  latter  proposal  and 

1  A  sketch  of  such  a  plan  for  closer  relations  between  the  Cabinet 
and  Congress  appears  in  "The  Business  of  Congress,"  by  Samuel  W. 
McCall,  at  the  time  of  writing  member  of  Congress  from  Massachu- 
setts. 


270      POLITICAL  SYSTEMS  IN  TRANSITION 

others  of  a  similarly  far-reaching  character  it  may  be  said  that 
whatever  the  merits  of  the  cabinet  form  of  government  in  the 
abstract,  the  engrafting  of  it  upon  the  Constitution  of  the 
United  States  must  as  a  practical  question  be  left  out  of  con- 
sideration for  the  present.  American  political  institutions  have 
developed  along  their  present  lines  too  long  to  be  abruptly  trans- 
formed without  causing  a  degree  of  disorganization  which 
would  result  in  far  greater  evils  than  those  attending  the  present 
system.  The  people  of  the  country,  with  all  their  interest  in 
political  policies,  have  given  too  little  consideration  to  the  organ- 
ization of  the  Government  to  be  ready  to  support  any  fundamen- 
tal change  in  it.  However  seriously  cabinet  government  might 
be  considered,  therefore,  were  the  Constitution  to  be  recast  as 
a  whole,  present  expediency  points  in  the  direction  of  im- 
proving existing  agencies  and  developing  them  through  succes- 
sive stages  towards  the  desired  ideal.  When  we  have  ex- 
perimented with  transitional  measures  we  may  be  ready  for 
the  final  logical  step. 

Proposal  that  the  Executive  present  measures  to  Con- 
gress. jMore  moderate  proposals,  which  nevertheless  promise 
to  effect  a  real  measure  of  improvement,  take  the  form  of  de- 
manding *'  that  the  administration  shall  propose  and  explain  all 
its  measures  —  the  bills  and  the  budget  —  openly  in  Congress 
and  fix  the  time  when  they  shall  be  considered  and  put  to 
vote."  ^  It  is  argued  that,  as  it  is  a  well  known  fact  that  the 
administration  is  really  the  guiding  force  behind  the  party  in 
power,  assuming  it  to  be  of  the  same  political  complexion,  it 
would  be  desirable  to  have  it  do  in  a  formal  and  public  manner 
what  it  now  does  by  means  of  personal  conferences  with  the 
leaders  in  Congress.  At  present  too  much  secrecy  attends  the 
passage  of  a  bill,  and  there  is  the  fullest  opportunity  in  the 
sessions  of  the  committees  and  in  the  caucuses  of  the  party 
groups  for  evasions  of  responsibility  in  respect  to  the  details 
of  the  bill  as  finally  passed.     Amendments  in  one  form  or 

1  H.  J.  Ford,  "  A  Program  of  Responsible  Democracy,"  in  "  American 
Politioal  Science  Review,"  August,  1918,  p.  492. 


PROGRAM  OF  POLITICAL  RECONSTRUCTION    271 

another  may  so  far  emasculate  the  bill  that  it  ceases  to  be  in 
reality  the  measure  advocated  by  the  Executive.  Whether 
this  proposal  would  ultimately  result  in  the  complete  transfer 
of  the  initiative  in  legislation  from  Congress  to  the  Executive 
is  a  question  which  need  not  be  determined  in  advance.  Its 
adoption  need  not  interfere  with  the  retention  by  Congress  of 
its  coordinate  initiative  in  legislation,  in  accordance  with  which 
it  would  draft  bills  of  its  own  in  case  the  Executive  failed  to 
act,  and  would  propose  bills  in  competition  with  those  of  the 
Executive,  leaving  it  to  the  test  of  discussion  and  debate  to  de- 
termine which  of  the  two  should  prevail.  By  way  of  example 
Mr.  Ford  calls  attention  to  the  provisions  of  the  Swiss  Consti- 
tution which  provides  that  the  Federal  Council,  which  cor- 
responds to  the  President  and  his  Cabinet  in  the  United  States, 
"  shall  introduce  bills  or  resolutions  into  the  Federal  As- 
sembly," and  that  its  members  "  shall  have  the  right  to  speak 
but  not  to  vote,  in  both  houses  of  the  Federal  Assembly,  and 
also  the  right  to  make  motions  on  the  subject  under  considera- 
tion." By  leaving  the  drafting  of  bills  to  the  administration, 
even  to  the  extent  of  allowing  it  to  reshape  the  language  of 
the  bill  so  as  to  include  amendments  desired  by  the  Assembly, 
the  danger  of  a  bill  defeating  its  own  purpose  by  having  un- 
noticed restrictions  attached  to  it  is  largely  obviated.  The 
publicity  attending  the  whole  process  makes  it  impossible  to 
introduce  the  "  riders  "  which  are  so  frequently  tagged  on  to 
the  legislation  of  our  Congress. 

Presidential  initiative  in  legislation.  It  would  seem  some-, 
what  idle,  in  view  of  the  changed  conditions  and  the  present 
complexity  of  public  business,  to  inquire  whether  the  assump- 
tion of  such  a  role  by  the  Executive  would  be  consistent  with  the 
original  purpose  of  the  Constitution.  The  terms  of  the  Con- 
stitution at  least  do  not  preclude  the  appearance  of  the  Execu- 
tive before  Congress  to  present  and  defend  its  measures.  It  is 
specifically  provided  that  the  President  "  shall  from  time  to  time 
give  to  the  Congress  information  of  the  State  of  the  Union, 
and  recommend  to  their  consideration  such  measures  as  he  shall 


2^2       POLITICAL  SYSTEMS  IN  TRANSITION 

judge  necessary  and  expedient."  In  the  exercise  of  its  right 
to  "  determine  the  rules  of  its  proceedings  "  Congress  could 
without  objection  fix  the  times  when  the  administration  bills 
might  be  presented  and  debated.  But  that  Congress  should 
abandon  entirely  the  initiative  in  legislation  would  undoubtedly 
be  inconsistent  with  the  spirit,  if  not  the  letter,  of  the  Con- 
stitution. What  distinguishes  Congress  from  the  legislative 
bodies  of  governments  in  which  the  cabinet  system  prevails  is 
precisely  that  Congress  has  never  formally  admitted  the  leader- 
ship of  the  Executive  in  legislation,  and  that,  whatever  the  in- 
fluence of  the  Executive  upon  the  party  councils  of  Congress, 
Congress  has  regularly  originated  law  upon  questions  of  the 
widest  variety  and  has  not  hesitated  on  one  occasion  after  an- 
other to  take  an  active  share  in  the  administration  and  guide 
the  hand  of  the  Executive  by  mapping  out  in  detail  the  duties 
of  the  administrative  departments.  It  is  now  proposed  that  a 
more  logical  division  of  power  shall  be  made.  "  The  cure  for 
all  our  constitutional  defects,"  says  Mr.  Ford,  "  the  remedy 
for  all  the  varied  ills  of  our  politics,  is  the  conversion  of  Con- 
gress into  an  organ  of  control.  .  .  .  The  cardinal  principle  is 
that  the  representative  body  shall  have  absolutely  no  share  in 
the  administration ;  then,  and  only  then,  will  it  form  a  system 
of  national  control  over  the  administration  in  behalf  of  the  peo- 
ple. It  cannot  share  in  the  administration  and  hold  control 
over  it  at  the  same  time."  ^  The  correct  principle,  it  is  thus 
asserted,  is  not  that  one  department  of  the  Government  should 
frame  the  laws  and  another  department  execute  them,  but  that 
one  department,  the  Executive,  should  both  frame  and  execute 
the  laws,  and  the  other  criticise  the  laws  as  framed  and  con- 
trol the  execution  of  them  by  the  administrative  agencies. 

Congressional  initiative  in  theory  and  in  practice.  The 
proposal  that  Congress  shall  become  as  it  were  a  "  board  of 
directors  "  and  shall  limit  its  functions  to  those  of  criticism 
and  control,  whatever  its  abstract  advantages  as  being  in  ac- 

1 "  The  War  and  the  Constitution,"  "  Atlantic  Monthly,"  October,  1917. 


PROGRAM  OF  POLITICAL  RECONSTRUCTION    273 

cordance  with  sound  principles  of  business  adminstration,  has  a 
rough  road  of  Congressional  opposition  to  travel,  even  if  its 
adoption  could  be  brought  about  without  doing  violence  to  the 
terms  of  the  Constitution.  The  tradition  of  legislative  initiative 
is  still  strong,  even  though  the  individual  member  enjoys  but 
an  insignificant  part  in  the  actual  process  of  legislation.  In 
theory  the  members  of  a  legislative  assembly  come  together  to 
present  the  points  of  view  of  their  several  localities  and  by 
common  counsel  to  adjust  their  divergent  interests  so  as  to  reach 
a  decision  which  will  promote  the  welfare  of  the  country  as 
a  whole  and  thus  indirectly  benefit  their  distinct  groups  of  con- 
stituents. Under  such  a  theory  the  congressman  is  more  than 
a  mere  critic  of  the  policies  advanced  by  the  executive  depart- 
ment. He  is  the  spokesman  of  constituents  who  have  dis- 
tinct views  of  the  means  which  should  be  taken  to  attain  the  na- 
tional prosperity,  and  he  enters  into  discussion  and  debate  with 
his  fellow  congressmen  on  the  floor  of  the  assembly  in  order 
that  by  the  contact  of  their  individual  convictions  they  may 
mutually  correct  and  modify  what  was  narrow  and  provincial 
in  their  original  outlook.  Obviously  such  a  conception  of  legis- 
lative duty  involves  the  right  of  the  individual  member  to  pro- 
pose measures  on  whatever  subject  he  or  his  constituents  be- 
lieve will  promote  the  national  welfare.  To  ask  him  to  forego 
the  initiative  in  legislation  is  to  ask  him  to  sit  by  idly  until 
another  branch  of  the  Government  not  so  closely  in  touch 
with  the  people  is  ready  to  bring  forward  a  measure  which  may 
or  may  not  embody  the  ideas  he  wishes  to  express. 

Such  a  conception  of  Congressional  duty  might  with  some 
justice  be  defended  against  encroachments  of  the  Executive  if 
in  reality  the  average  member  of  Congress  had  an  opportunity 
to  present  and  advocate  the  views  of  his  constituents.  But  as 
is  well  known  the  business  of  Congress  is  performed  through 
the  agency  of  committees,  and  the  question  whether  an  in- 
dividual member  shall  be  able  to  present  bills  which  he  desires 
to  have  adopted  becomes  largely  a  question  of  the  commit- 
tees upon  which  he  happens  to  be  appointed.     The  House  of 


274       POLITICAL  SYSTEMS  IN  TRANSITION 

Representatives  has  in  fact  long  since  ceased  to  give  any  rec- 
ognition to  the  individual  member,  and  has  become  a  highly 
organized  business  body  with  committees  covering  every  part 
of  the  field  of  legislation.  These  committees  are,  in  reality,  a 
series  of  small  cabinets  w^hose  sessions  are  conducted  in  secret 
and  whose  chairmen  constitute  a  group  of  the  elder  statesmen 
who  have  won  their  places  by  right  of  seniority.  At  the  same 
time  the  organization  of  the  House  by  committees  has  re- 
sulted in  its  losing  its  character  as  a  deliberative  body.  The 
finality  with  which  the  reports  of  the  committees  are  generally 
received  leaves  no  room  for  discussion  and  debate  on  the  floor 
of  the  House;  and  considering  the  immense  volume  of  legisla- 
tion annually  adopted  the  mere  lack  of  time  would  be  suffi- 
cient to  silence  the  individual  member.  Instead  of  the  meet- 
ing of  many  minds  and  the  framing  of  legislation  representative 
of  the  collective  judgment  of  the  nation,  we  have  the  decisions 
of  small  groups  whose  breadth  of  outlook  is  scarcely  to  be 
compared  with  that  of  the  President  and  his  departmental  ad- 
visers. For  all  practical  purposes,  therefore,  the  individual 
member  of  the  House  of  Representatives  has  not  only  lost  the 
power  of  legislative  initiative  in  national  matters,  but  has  been 
deprived  of  the  opportunity  of  offering  counsel  and  criticism. 
On  the  other  hand,  if  the  committee  system  represents  the 
abandonment  by  individual  members  of  an  actual  share  in  legis- 
lation, the  practice  of  '*  log-rolling  "  applied  to  private  appro- 
priation bills  represents  the  abandonment  of  any  collective  judg- 
ment on  the  part  of  the  House  as  a  whole  in  dealing  with  such 
matters.  Whether  it  be  the  fault  of  the  representative  who 
seeks  to  secure  his  hold  upon  his  district  by  distributing  jobs 
and  contracts  among  influential  adherents,  or  whether  it  be  the 
fault  of  the  district  itself  which  judges  of  the  value  of  its  rep- 
resentative's services  by  the  pickings  he  is  able  to  secure  from 
the  "  pork  barrel,"  it  is  clear  that  the  public  at  large  would  wel- 
come the  transfer  to  the  Executive  department  of  the  initiative 
in  framing  such  bills  and  in  determining  the  needs  underlying 
the  applications  for  local  improvements.    It  is  a  curious  com- 


PROGRAM  OF  POLITICAL  RECONSTRUCTION    275 

ment  upon  democratic  government  to  witness  the  appeals  to 
the  President  to  save  the  country  from  the  extravagances  of  its 
own  locally  elected  representatives. 

Proposed  plan  of  a  national  budget.  The  demand  for  an 
executive  budget  is  based  upon  larger  considerations  than  the 
mere  correction  of  the  scandals  connected  with  private  appro- 
priation bills.  Its  object  is  to  put  the  financial  affairs  of  the 
Government  upon  a  sound  basis  by  authorizing  the  President, 
who  is  responsible  for  the  actual  administration  of  public  af- 
fairs, to  draw  up  a  consolidated  budget  which  shall  contain  a 
definite  statement  as  to  the  condition  of  the  treasury  at  the 
time,  the  revenues  and  expenditures  of  the  Government  dur- 
ing the  preceding  and  the  current  years,  and  the  revenues  neces- 
sary to  meet  the  expenditures  which  must  be  made  during  the 
coming  fiscal  year.  This  authority  in  the  head  of  the  adminis- 
tration wiir unify  the  requests  of  the  several  departments  for 
the  grant  of  funds,  so  that  thereafter  no  requests  shall  be  made 
to  Congress  directly  from  the  officers  of  the  departments.  The 
budget  thus  prepared,  with  its  balances  of  revenues  and  ex- 
penditures and  its  classification  of  each  according  to  units  of 
administration,  shall  be  submitted  to  Congress  by  the  President 
at  the  beginning  of  each  regular  session,  accompanied  by  a 
special  message  presenting  a  survey  of  the  financial  affairs  of 
the  Government.  Congress  in  turn  is  to  refer  the  budget  to  a 
special  joint  Committee  on  Finance  of  the  two  houses.  This 
committee,  in  drawing  up  the  appropriation  bill,  shall  follow 
the  same  scheme  of  classified  items  that  was  followed  in  the 
budget,  and  shall,  in  making  its  recommendations  to  Congress, 
compare  the  amounts  estimated  for  in  the  budget  with  the 
amounts  actually  recommended  by  the  committee,  with  a  state- 
ment of  their  reasons  for  departing  from  the  estimates  of  the 
budget.  These  itemized  appropriations  shall  not  be  increased 
by  Congress  except  upon  a  two-thirds  affirmative  vote. 
Finally,  provision  is  to  be  made  for  an  auditor  general,  who 
shall  be  an  officer  of  Congress  and  not  of  the  Executive,  and 
whose  duty  it  shall  be  to  examine  the  accounts  of  all  expendi- 


276      POLITICAL  SYSTEMS  IN  TRANSITION 

tures  by  the  administrative  departments  and  to  report  to  Con- 
gress the  results  of  his  findings.  In  this  way  Congress  will 
be  able  to  exercise  an  effective  control  over  the  Executive  and 
hold  it  to  a  rigid  accountability.^ 

Transfer  of  legislative  initiative  to  the  President.  The 
adoption  of  an  executive  budget  might  well  be  a  first  step 
towards  the  transfer  from  Congress  to  the  Executive  of  a  gradu- 
ally increasing  degree  of  the  initiative  in  legislation.  As  we 
have  seen,  the  question  becomes  for  the  individual  member  of 
Congress  a  choice  between  committee  rule  and  the  formal 
acknowledgment  of  executive  leadership.  On  the  other  hand 
the  clioice  for  the  public  at  large  is  between  the  continuance  of 
the  extravagances  in  the  expenditure  of  public  funds,  with 
consequent  increase  of  taxes,  and  the  renunciation  by  the  con- 
stituents in  the  several  districts  of  the  selfish  advantage  of  be- 
ing the  occasional  recipients  of  favors  from  the  appropriation 
committees.  Looking  at  the  question  in  its  larger  aspects, 
Congress  as  a  whole  has  much  more  to  gain  than  to  lose  from 

1  Summarized  from  a  pamphlet  entitled,  A  National  Budget  Sys- 
tem, by  W.  F.  Willoughby,  published  by  the  Institute  for  Government 
Research.  For  a  more  detailed  study  of  the  subject  see  the  same  au- 
thor's "  Problem  of  a  National  Budget,"  1918.  At  the  opening  of  the 
special  session  of  Congress  in  May,  1919,  a  "bill  to  provide  for  a  na- 
tional budget  system  and  an  independent  audit  of  government  accounts 
and  for  other  purposes"  was  introduced  by  Mr.  Good,  chairman  of 
the  House  Committee  on  Appropriations.  The  bill  carries  into  effect 
the  chief  provisions  of  the  plan  outlined  above,  with  the  exception  of 
the  part  relating  to  the  action  of  Congress  upon  the  budget  when  it 
comes  from  the  hands  of  the  Executive. 

On  May  29,  1920,  Congress  finally  passed  the  McCorraick-Good 
Budget  bill,  one  provision  of  which  was  to  the  effect  tliat  the  Con- 
troller General  and  the  Assistant  Controller  General,  who  were  to  be 
appointed  by  the  President  with  the  advice  and  consent  of  the  Senate, 
might  be  removed  at  any  time  by  a  concurrent  resolution  of  Congress 
after  notice  and  hearing.  This  provision  was  regarded  by  President 
Wilson  as  an  unconstitutional  encroachment  upon  the  powers  of  the 
Executive,  and  as  a  result  he  vetoed  the  bill  on  June  4,  while  expressing 
himself  "  in  sympathy  with  its  objects."  The  bill  was  amended  by  the 
House,  but  failed  to  pass  the  Senate  before  its  adjournment  on  June  5. 


PROGRAM  OF  POLITICAL  RECONSTRUCTION    2^y 

the  proposed  transfer.  The  debates  which  gave  dignity  to  the 
House  of  Representatives  in  the  days  of  Webster,  Calhoun,  and 
Clay  might  in  some  measure  be  restored,^  and  the  critical  and 
constructive  knowledge  now  reserved  for  the  committee  rooms 
might  be  displayed  upon  the  floor  of  the  House  and  thus  reach 
the  country  in  a  way  in  which  the  reprints  of  undelivered 
speeches  have  never  done.  The  House  should  speak  for  the 
nation ;  it  should  be  able  to  watch  the  Executive  and  call  it  to 
account  for  its  acts ;  it  should  be  able  to  interrogate  the  heads 
of  the  administrative  departments  and  obtain  from  them  in 
the  open  sessions  of  Congress  the  information  which  they  are 
now  called  upon  from  time  to  time  to  give  to  the  committees; 
it  should  be  a  forum  for  the  frank  discussion  of  present  issues 
and  future  policies.  Only  thus  can  the  "  common  counsel  "  and 
"  meeting  of  minds  "  from  all  corners  of  the  nation  be  applied 
to  the  solution  of  the  pressing  political  problems  before  the 
country.  To  do  this  no  more  is  required  than  a  change  in  the 
rules  of  Congress,  which  it  is  entirely  within  the  constitutional 
authority  of  that  body  to  make.^ 

Possible  deadlock  betvs^een  President  and  Congress  of  dif- 
ferent political  parties.  One  serious  weakness  of  the  system 
of  checks  and  balances  under  which  the  Government  of  the 
United  States  operates  is  the  possibility  of  party  friction  which 
is  offered  by  the  different  terms  of  office  to  which  the  President 
and  members  of  Congress  are  elected.     At  the  moment  of  pres- 

1  For  a  brief  moment  during  the  war  the  House  of  Representatives 
appeared  to  rise  to  the  full  stature  of  a  deliberative  assembly  in  the 
presence  of  the  great  war  measures  presented  by  the  Executive. 

2  Mr.  F.  A.  Cleveland  outlines  an  elaborate  plan  by  which  Congress 
might  become  a  "court  of  inquest"  and  develop  a  trial  procedure  in 
which  "the  case  of  the  people  against  the  Government"  would  be 
heard.  "Democracy  and  Reconstruction,"  Chap.  XX.  The  idea  is 
suggestive,  but  as  it  would  involve  the  necessity  of  having  the  Presi- 
dent reorganize  his  Cabinet  in  case  a  motion  of  lack  of  confidence 
were  carried,  and  would  thus  logically  lead  to  cabinet  government  of 
the  type  of  the  British  Parliament,  it  may  better  perhaps  await  its 
turn  until  more  tentative  steps  have  been  taken. 


278       POLITICAL  SYSTEMS  IN  TRANSITION 

ent  writing  the  contest  between  a  President  elected  by 
one  political  party  and  a  Senate  controlled  by  another  party  is 
reaching  its  climax  after  more  than  a  year  of  heated  con- 
troversy between  the  two  branches  of  the  treaty-making  au- 
thority. No  one  will  contend  that  the  party  alignment  in  the 
Senate  has  represented  in  all  cases  the  convictions  of  the  mem- 
bers on  the  merits  of  the  peace  treaty.  A  problem  of  foreign 
politics,  which  has  no  proximate  connection  with  the  traditions 
of  either  party,^  and  which  was  not  an  issue  at  the  time  of  the 
last  election,  has  been  thrust  into  the  forefront  of  partisan  de- 
bate, with  the  result  that  a  practical  deadlock  in  the  operations 
of  the  Government  has  been  reached.  The  Executive  depart- 
ment, which  controlled  the  negotiations  of  the  treaty,  is  power- 
less to  obtain  its  ratification  by  the  necessary  two-thirds  in  the 
Senate,  while  the  majority  in  control  of  the  Senate,  although 
able  to  prevent  the  ratification  of  the  treaty  in  the  form  desired 
by  the  President,  is  powerless  to  bring  about  the  negotiation  of  a 
treaty  after  its  own  desires.  In  the  meantime  the  inaction, 
which  is  often  more  demoralizing  than  mistaken  action,  is  mak- 
ing the  nation  a  spectacle  of  defeated  democracy.  Similar  sit- 
uations have  arisen  before  in  connection  with  domestic  problems, 
as  in  1890  when  a  Democratic  House  of  Representatives  could 
make  no  headway  with  tariff  reform  against  a  Republican  Sen- 
ate and  President,  but  the  worst  that  has  resulted  in  such  cases 
was  the  temporary  suspension  of  legislation  of  a  character  that 
might  accrue  to  the  advantage  of  either  party.  When,  however, 
questions  of  foreign  policy  are  involved,  and  especially  when 
issues  of  war  and  peace  are  at  stake,  it  is  imperative  that  there 
be  no  undue  delay  in  reaching  a  decision.  At  the  same  time  it 
is  more  than  ever  necessary  that  such  questions  be  considered 
strictly  on  their  merits,  because  of  the  greater  responsibility  at- 
tending the  decision  and  the  difficulty  of  undoing  what  has 
been  done.     The  only  solution,  apart  from  a  change  in  the 

1  If  traditions  based  upon  the  policy  of  "imperialism"  adopted  after 
the  Spanish-American  war  were  applied  to  the  situation,  they  would 
seem  to  call  for  a  reversal  of  the  present  alignment. 


PROGRAM  OF  POLITICAL  RECONSTRUCTION    279 

Constitution,  which  offers  itself  in  such  cases  of  divided  party 
control  is  that  the  Executive  should  attempt  to  forestall  oppo- 
sition in  the  Senate  by  appointing  as  commissioners  for  the 
negotiation  of  the  treaty  representatives  of  both  political 
parties. 

Executive  control  over  steps  leading  to  war.  Connected 
with  the  general  problem  of  the  reorganization  of  the  rela- 
tions between  Congress  and  the  Executive  is  the  question 
whether  some  means  cannot  be  devised  by  which  Congress 
may  exercise  a  check  upon  the  Executive  in  cases  where  the 
friendly  relations  of  the  United  States  with  a  foreign  country 
are  involved.  The  issue  was  raised  acutely  at  the  entrance  of 
the  United  States  into  the  war,  but  has  been  left  unsettled  in 
the  presence  of  more  urgent  problems.  It  involves  the  at- 
tempt to  draw  a  line  between  the  general  powers  of  the  Execu- 
tive to  direct  negotiations  with  foreign  countries  and  the  specific 
power  of  Congress  to  declare  war.  Is  the  President  to  have  a 
free  hand  in  the  conduct  of  foreign  affairs  even  to  the  point 
where  war  is  practically  inevitable,  leaving  only  to  Congress 
the  power  actually  to  declare  war,  or  may  Congress  intervene 
in  the  negotiations  when  they  have  reached  a  point  where  there 
is  danger  of  a  rupture  of  friendly  relations?  The  former 
situation  is  undoubtedly  the  correct  one  as  judged  by  the  con- 
sistent practice  of  the  Department  of  State,  but  it  is  obvious 
that  it  may  easily  nullify  the  power  to  declare  war  by  putting 
Congress  in  the  position  of  being  obliged  either  to  back  out  of 
a  position  assumed  by  the  Executive,  with  consequent  humilia- 
tion according  to  the  accepted  standards  of  international  rela- 
tions, or  else  to  support  the  Executive  and  to  declare  war 
against  what  would  have  been  its  judgment  had  it  been  con- 
sulted in  advance.  The  student  of  history  is  familiar  with  the 
manner  in  which  President  Polk,  acting  on  his  own  discretion, 
gave  orders  to  the  army  to  undertake  movements  which  had  the 
inevitable  effect  of  bringing  on  an  attack  by  the  Mexican  forces, 
in  reply  to  which  Polk  announced :  "  War  exists,  and,  notwith- 
standing all  our  efforts  to  avert  it,  exists  by  the  act  of  Mexico 


28o       POLITICAL  SYSTEMS  IN  TRANSITION 

herself."  In  1895  ^  striking  instance  of  the  way  in  which  ne- 
gotiations by  the  Executive,  without  knowledge  of  the  peo- 
ple or  control  by  Congress,  could  reach  a  critical  point  was  given 
in  the  message  of  Secretary  Olney  to  Great  Britain  in  the  Vene- 
zuela boundary  controversy.  Had  an  equally  sharp  reply  been 
received  from  London  it  is  more  than  possible  that  Congress 
might  have  found  itself  in  a  position  where  it  would  have  been 
difficult  to  avoid  maintaining  by  force  the  "  national  self-respect 
and  honor  "  which  President  Cleveland  believed  to  be  involved 
in  the  case.  Again  in  19 14,  when  our  relations  with  Mexico 
were  strained  as  a  result  of  the  affair  at  Tampico,  President 
Wilson  gave  orders  to  the  Navy  to  prevent  certain  cargoes  of 
arms  and  ammunition  from  falling  into  Mexican  hands,  with 
the  result  that  the  port  of  Vera  Cruz  was  occupied  by  Amer- 
ican marines  and  lives  were  lost  on  both  sides.  The  occupation 
of  Vera  Cruz  amounted  in  fact  to  war  against  Mexico.  Had 
the  latter  been  in  a  position  to  take  up  the  challenge,  Congress 
would  have  found  it  difficult  to  refuse  to  support  the  Execu- 
tive.^ 

Claims  of  Congress  to  joint  control.  It  would  seem, 
therefore,  that  Congress  might  justly  claim  the  right  to  be 
consulted  by  the  Executive  before  any  step  is  taken  in  nego- 
tiations with  a  foreign  State  which  might  endanger  the  con- 
tinuance of  friendly  relations.  But  since  by  the  custom  of  the 
Constitution  the  President  has  regularly  exercised  his  power 
of  conducting  foreign  affairs  without  acknowledging  any  au- 
thority on  the  part  of  Congress  to  call  him  to  account,  the 
difficult  question  is  presented  how  Congress  is  to  demand  ef- 
fectively even  so  limited  a  participation  in  the  action  of  the 
Executive,  in  case  the  latter  should  refuse  to  make  the  conces- 

^  Further  instances  might  be  cited,  such  as  the  action  of  President 
Roosevelt  in  1903  in  forbidding  the  landing  of  Colombian  troops  within 
fifty  miles  of  Panama,  which  made  it  impossible  for  Colombia  to 
subdue  the  revolution  in  that  district  and  would  undoubtedly  have  led 
to  war  without  the  previous  implied  consent  of  Congress,  had  Colom- 
bia been  in  a  position  to  maintain  her  legal  rights  by  force. 


PROGRAM  OF  POLITICAL  RECONSTRUCTION    281 

sion.  In  all  other  respects  the  authority  of  the  Executive  in 
the  conduct  of  foreign  affairs  has  been  exercised  without  any 
sense  of  responsibility  to  either  of  the  other  departments  of 
the  Government.  No  legal  restraints  are  placed  by  the  Con- 
stitution upon  the  President's  powers.  Vital  and  far-reach- 
ing as  may  be  the  results  of  the  decisions  that  he  makes,  his 
responsibility  is  to  the  people  directly,  and  there  is  no  other 
recourse  than  to  rely  upon  his  sense  of  honor,  good  judg- 
ment and  desire  to  promote  the  welfare  of  the  country.  His 
executive  prerogative  embraces  *'  an  unlimited  discretion  .  .  . 
in  the  recognition  of  new  governments  and  states;  and  un- 
defined authority  in  sending  special  agents  abroad,  of  dubious 
diplomatic  status,  to  negotiate  treaties  or  for  other  purposes ;  a 
similarly  undefined  power  to  enter  into  compacts  with  other 
governments  without  the  participation  of  the  Senate;  the 
practically  complete  and  exclusive  discretion  in  the  negotiation 
of  more  formal  treaties,  and  in  their  final  ratification;  the 
practically  complete  and  exclusive  initiative  in  the  official  for- 
mulation of  tlie  nation's  foreign  policy. "  ^  Doubtless  if  a 
general  revision  of  the  Constitution  were  in  progress  a  re- 
organization of  the  relations  between  Congress  and  the  Execu- 
tive would  include  some  measure  of  control  by  Congress  as 
a  whole,  or  by  the  Senate  in  its  treaty-making  capacity,  over 
the  business  of  the  Department  of  State.  A  single  amend- 
ment directed  to  that  object  would  present  complications  which 
would  be  difficult  of  adjustment  with  the  other  clauses  of  the 
Constitution.  At  present  Congress  can  do  no  more  than  re- 
quest the  Secretary  of  State  to  appear  before  its  committees 
on  foreign  affairs  and  furnish  such  information  after  the 
event  as  it  may  seem  expedient  to  that  official  to  make  public. 
Difficulties  of  popular  control  over  foreign  policies.  It 
is  a  problem  for  those  who  advocate  democratic  control  of 
foreign  policies  to  devise  some  machinery  by  which  the  peo- 

1 E.    S.    Corwin,   "  The   President's    Control   of   Foreign    Relations," 
pp.  205-206. 


282      POLITICAL  SYSTEMS  IN  TRANSITION 

pie  may  be  able  to  express  their  views  upon  the  more  press- 
ing questions  which  arise  from  time  to  time  in  the  inter- 
course of  nations.  The  same  problem  presents  itself  to  those 
who  are  unwilhng  to  leave  to  Congress  the  decision  to  make 
war,  and  who  demand  that  Congress  be  guided  by  the  results 
of  a  national  referendum.  In  both  cases  the  difficulty  lies 
in  framing  the  issue  in  such  a  way  as  to  obtain  a  popular 
verdict  which  will  not  tie  the  hands  of  the  Executive  and  of 
Congress  when  new  circumstances  arise.  It  is  well  within  the 
range  of  practical  reforms  to  advocate  open  diplomacy,  and 
to  insist  that  the  public  shall  have  full  information  of  each 
important  move  in  the  exchange  of  diplomatic  notes,  leaving 
it  to  Congress  and  the  Executive  to  be  guided  by  the  indica- 
tions of  public  opinion  which  come  from  day  to  day  from 
the  press  and  other  agencies  of  national  communication.  But 
to  attempt  to  formulate  delicate  questions  so  as  to  enable  the 
public  to  return  an  authoritative  answer  is  to  assume  that  it 
is  possible  to  express  an  opinion  in  positive  terms  upon  a  sub- 
ject which  by  its  very  nature  requires  an  answer  contain- 
ing qualifications  and  discriminations.  The  initiative  and  the 
referendum  may  in  time  come  to  be  used  as  freely  in  national 
affairs  as  they  are  at  present  used  in  many  of  the  separate 
States,  but  as  applied  to  the  conduct  of  foreign  affairs  it  will  al- 
ways be  necessary  to  consider  that  there  is  another  party  to 
the  negotiations,  to  whom  we  cannot  dictate  but  only  make 
advances  and  offers,  and  whose  next  move  in  the  exchange 
of  diplomatic  notes  may  make  the  latest  expression  of  public 
opinion  by  referendum  beside  the  point. 

The  extension  of  the  functions  of  government.  Next  in 
importance,  politically,  to  the  problems  raised  by  the  war  in 
connection  with  the  organization  of  the  Federal  Government 
are  those  raised  in  connection  with  the  extension  of  the  func- 
tions of  government.  During  the  decades  preceding  the  war 
the  Federal  Government  and  the  Governments  of  the  separate 
States  already  were  advancing  more  or  less  rapidly  into  the 
new  fields  of  legislation  in  which  economic  an<i  social  problems 


PROGRAM  OF  POLITICAL  RECONSTRUCTION     283 

of  the  widest  variety  were  brought  within  the  control  of  the 
law.  The  war  accelerated  the  progress  of  this  tendency,  and 
has  pushed  us  to  the  point  where  it  is  important  to  inquire 
whether  we  wish  to  continue  along  the  same  path  or  retrace 
our  steps  back  to  some  limit  beyond  which  no  further  advance 
should  be  made.  The  problem  may  be  stated  in  terms  of 
drawing  a  definite  line  between  the  proper  sphere  of  govern- 
mental activity  and  the  outlying  fields  of  individual  activity 
upon  which  it  is  inexpedient  that  the  State  should  encroach. 
The  older  traditions  of  American  Government  have  favored 
a  policy  of  individualism  in  regard  to  the  control  of  the  Gov- 
ernment over  industrial  and  social  life.  Partly  due  to  economic 
theories  dominant  at  the  close  of  the  i8th  century  and  during 
the  first  half  of  the  19th  century,  and  doubtless  even  more 
largely  due  to  the  physical  conditions  attending  the  develop- 
ment of  a  new  country,  the  belief  was  widely  held  that  govern- 
ments should  limit  their  functions  to  the  maintenance  of  law 
and  order  in  the  community  and  to  the  protection  of  the  rights 
of  person  and  of  property,  leaving  it  to  the  citizens  themselves 
to  look  after  material  and  moral  needs.  Opportunities  being 
open  to  all,  it  was  sufficient  for  the  Government  to  secure 
fair  play  between  individuals,  and  to  allow  the  law  of  compe- 
tition to  secure  on  the  one  hand  the  largest  production  of  the 
material  goods  of  life  and  on  the  other  hand  a  fair  distribution 
of  the  profits  of  production  among  those  who  had  contributed 
to  it.  Artificial  laws  framed  to  interfere  with  the  progress  of 
this  natural  law  could  not  but  be  an  obstacle  to  progress.  At 
the  same  time  any  proposal  on  the  part  of  the  Government  to  act 
as  a  positive  agent  in  promoting  public  welfare  represented  an 
attempt  to  do  for  men  what  they  could  do  equally  well  or 
better  for  themselves,  and  therefore  tended  to  weaken  their 
spirit  of  self-reliance  and  individual  initiative. 

Control  over  railroads  and  trusts.  This  earlier  conception 
of  the  limitations  upon  state  action  had  already  been  abandoned 
in  many  fields  before  the  United  States  entered  the  war  in 
1917.     The  building  of  the  great  railways  inevitably  tended 


284      POLITICAL  SYSTEMS  IN  TRANSITION 

towards  monopolistic  control  and  required  the  intervention  of 
the  Federal  Government  and  the  creation  of  a  special  agency 
of  regulation.  The  growth  under  the  law  of  competition  of 
huge  combinations  of  capital  threatened  to  destroy  the  very 
law  under  which  they  had  grown  up,  and  the  Federal  Govern- 
ment was  called  upon  to  put  forth  a  prohibition  against  such 
combinations  when  a  purpose  was  shown  to  place  restraints 
upon  the  freedom  of  commerce.  That  the  policy  followed  by 
the  Government  was  not  a  logical  or  consistent  one  can  scarcely 
be  denied.  As  a  means  of  protecting  the  public  the  Govern- 
ment sought  to  enforce  competition  among  the  railroads  and  to 
prevent  pooling  of  rates  and  services,  but  at  the  same  time  it 
found  it  necessary  to  control  rates  and  services  directly  in  cases 
where  the  law  of  competition  could  not  operate  effectively.  On 
the  other  hand,  as  regards  monopolies  and  trusts  the  law  of 
competition  was  enforced,  but  it  remained  uncertain  whether 
combinations  were  to  be  prosecuted  which  did  not  actually 
have  the  effect  of  restraining  trade.  At  first  the  interpretation 
of  the  law  by  the  courts  penalized  combinations  as  such,  on 
the  ground  of  the  potential  if  not  actual  restraint  of  trade 
which  they  involved.  But  subsequently  this  position  was  re- 
versed and  mere  combinations,  apart  from  unfair  practices  in 
their  formation,  were  exempted  from  the  terms  of  the  act.* 
The  result  was  that,  with  the  exception  of  the  railways,  com- 
binations of  capital  remained  unregulated  except  in  respect 
to  their  methods  of  combination,  while  the  public  remained 
practically  unprotected  except  where  there  were  overt  acts 
showing  an  intent  to  obtain  a  monopoly  over  any  part  of  trade 
or  commerce. 

Governmental  control  during  the  war.  The  needs  created 
by  the  war,  as  we  have  seen,  greatly  widened  the  sphere  of 
governmental  control  over  industrial  life.     The  raw  materials 

1  The  recent  decision  of  the  Supreme  Court  in  the  case  of  the 
United  States  Steel  Corporation  again  applies  the  "  rule  of  reason " 
formulated  in  the  Standard  Oil  and  American  Tobacco  Company 
cases. 


PROGRAM  OF  POLITICAL  RECONSTRUCTION    285 

of  industry  were  brought  under  control  in  so  far  as  was  neces- 
sary to  secure  the  manufacture  of  the  necessary  war  materials ; 
priorities  were  estabHshed  and  a  system  of  rationing  was 
adopted ;  corporations  were  created  as  subordinate  departments 
of  the  Government  for  the  construction  of  merchant  shipping; 
the  railways  were  taken  over  by  the  Government  and  placed 
under  a  director  who  administered  them  as  a  whole;  the  tele- 
graph and  telephone  lines  were  in  like  manner  converted  into 
government  agencies  under  direct  control.  Even  in  matters 
not  so  directly  connected  with  the  prosecution  of  the  war  the 
Government  enlarged  its  sphere  of  action  and  undertook  to  fix 
a  guaranteed  price  of  wheat  both  to  stimulate  production  and 
to  offset  a  rise  in  prices ;  it  regulated  other  foodstuffs  by  means 
of  a  wide  variety  of  voluntary  and  semi-compulsory  methods, 
and  in  the  exercise  of  its  power  to  raise  and  support  armies 
the  Federal  Government  entered  still  further  into  the  reserved 
domain  of  State  legislation  and  authorized  prohibition  of  the 
use  of  foodstuffs  in  the  manufacture  of  intoxicating  liquors ; 
it  regulated  the  distribution  of  coal  among  non-essential  in- 
dustries even  to  the  extent  of  ordering  a  complete  cessation  of 
work  in  factories  on  Mondays  during  a  critical  period.  In 
these  and  other  ways  Congress  and  the  Executive  met  the 
emergency  of  the  war  by  the  assumption  of  new  powers  or 
the  enlargement  of  existing  powers  wherever  such  action  ap- 
peared to  conduce  to  the  attainment  of  the  primary  object  of 
winning  the  war. 

Effect  of  war  measures  upon  peace  policies.  It  was  im- 
possible, however,  that  the  enlargement  of  the  sphere  of  gov- 
ernment control  over  industry  during  the  war  should  not  have 
the  effect  of  opening  up  new  fields  for  the  control  of  industry 
in  time  of  peace.  The  traditional  distrust  of  governmental  in- 
terference was  greatly  lessened  by  the  experience  of  the  war 
administration.  Rather  the  public  at  large  came  to  look  to  the 
Government  as  a  source  of  protection  against  conditions  which 
appeared  to  be  beyond  the  control  of  the  ordinary  economic  laws 
which  had  hitherto  been  their  safeguard.     When  demand  so 


286       POLITICAL  SYSTEMS  IN  TRANSITION 

far  exceeded  supj^ly  it  was  clear  that  competition  was  no  pro- 
tection against  exorbitant  prices  until  the  point  of  maximum 
endurance  had  been  reached.  Luxuries  might  be  given  up, 
but  the  necessities  of  life  could  not  be  denied,  and  the  re- 
duced quantities  of  these  commodities  left  the  consumer  no 
option  but  to  pay  the  price  demanded.  In  consequence  no  op- 
position was  manifested  by  the  public  at  large  when  the  Gov- 
ernment continued  to  exercise  during  the  months  following 
the  armistice  the  powers  of  control  which  belonged  to  it  only 
by  virtue  of  the  technical  continuance  of  the  war.  The  prob- 
lem of  the  present  moment  is  to  determine  what  permanent 
provision  may  be  made  for  such  measure  of  control  by  the 
Government  over  industry  as  may  be  from  time  to  time  neces- 
sary to  compensate  for  the  temporary  suspension  of  the  protec- 
tion normally  afforded  to  the  public  by  the  law  of  supply  and 
demand. 

Railway  reorganization.  But  while  there  has  been  a  de- 
mand for  the  interference  of  the  Government  in  industry  to 
the  extent  of  protecting  the  public  against  abnormal  conditions 
which  have  afforded  an  opportunity  for  profiteering,  the  at- 
titude of  the  public  towards  the  direct  administration  by  the 
Government  of  public  service  corporations,  such  as  the  great 
agencies  of  transportation  and  communication,  has  been 
cautious  and  hesitating,  if  not  directly  in  opposition.  Doubt- 
less the  most  pressing  problem  of  reconstruction  before  the 
Federal  Government  during  the  year  following  the  armistice 
was  the  determination  whether  and  under  what  conditions  the 
railroads  should  be  returned  to  their  owners.  The  benefits  in 
service  obtained  from  the  centralized  control  put  into  effect  by 
the  Government  were  so  obvious  that  there  was  a  clear  and 
insistent  demand  that  the  railroads  should  not  be  allowed  to 
revert  to  their  former  condition  of  separate  and  competing 
systems.  Even  before  the  war  it  had  been  clearly  recognized 
that  the  Sherman  Anti-trust  Act  and  its  various  amendments 
had  imposed  upon  the  railroads  a  competitive  system  which  each 
succeeding  year  showed  to  be  out  of   harmony  with   sound 


PROGRAM  OF  POLITICAL  RECONSTRUCTION    287 

economic  principles.  The  theoretical  gain  which  was  to  accrue 
to  the  public  from  the  enforced  underbidding  of  the  several 
systems  had  proved  illusory,  and  had  resulted  either  in  cut- 
throat and  mutually  destructive  competition  or  in  combinations 
devised  to  present  a  show  of  competition  where  there  was  in 
reality  a  unity  of  management.  The  unified  administration  of 
the  Director  General  during  the  war  showed  the  possibilities  of 
economy  and  efficiency  which  could  be  effected  through  the 
merger  of  lines  and  terminals,  ot  rolling  stock  and  general 
equipment.  At  the  same  time  shorter  routes  were  mapped  out 
and  through  shipments  were  facilitated.  Most  important  of 
all  it  was  shown  that  when  the  railroads  were  being  operated 
as  a  unified  system  it  was  possible  to  adjust  them  to  the  needs 
of  the  country  far  better  than  when  they  were  operated  as 
isolated  and  competing  lines. 

Government  ownership  as  a  solution.  It  was  one  thing, 
however,  to  recognize  the  advantages  of  centralized  control 
and  another  thing  to  determine  how  a  unified  system  might  be 
established  for  normal  times  of  peace.  Direct  government 
ownership  appealed  only  to  a  relatively  small  minority.  It  was 
advocated  by  the  Socialist  party  as  part  of  its  general  economic 
program  of  public  ownership  of  the  instruments  of  production, 
and  distribution.  Other  less  radical  groups,  without  relying 
upon  abstract  theories,  held  that  sound  business  principles 
called  for  a  unified  system  of  control,  and  that  only  under 
government  ownership  could  such  a  system  be  satisfactorily 
worked  out.  While  admitting  the  possibility  of  the  intrusion 
of  politics  into  the  administration  of  nationalized  railways, 
they  were  convinced  that  checks  could  be  devised  to  offset  this 
danger.  As  against  these  arguments,  elaborated  in  detail,  the 
actual  experience  of  the  operation  of  the  railways  by  the  Gov- 
ernment during  the  war  seemed  to  others  conclusive.  How 
far  the  judgment  of  this  larger  body  of  the  public  was  reached 
after  a  fair  estimate  of  the  difficulties  under  which  the  Govern- 
ment Director  labored,  and  of  the  fact  that  the  interests  of  the 
individual  traveller  and  shipper  had  to  be  subordinated  to  the 


288       POLITICAL  SYSTEMS  IN  TRANSITION 

requirements  of  the  war  administratk)n,  is  another  question. 
The  chief  count  in  the  indictment  brought  by  the  general  public 
against  the  Government's  administration  appeared  to  be  based 
upon  the  observation  that  no  obvious  improvement  in  the  char- 
acter of  the  service  rendered  was  seen  as  a  result  of  the  trans- 
fer of  the  employee  from  the  employ  of  private  capital  to  that 
of  the  State  as  a  whole.  If  anything,  the  greater  security  of 
employment  under  government  control  appeared  to  have  the 
effect  of  weakening  discipline.  On  the  whole  the  verdict  of 
the  public,  in  so  far  as  it  may  be  judged  from  the  columns  of 
the  press  and  from  the  resolutions  of  conventions,  seemed  to 
take  into  account  only  its  own  losses  from  government  control 
and  failed  to  balance  them  against  the  advantages  accruing 
to  the  country  as  a  whole  in  the  prosecution  of  the  war.  A 
fairer -attitude  towards  the  war  administration  of  the  railroads 
would  be  to  regard  it  as  an  inconclusive  test  of  the  results  of 
government  administration  in  normal  times,  and  to  draw  from 
it  no  more  than  tentative  inferences  in  respect  to  particular 
phases  of  the  problem. 

Private  ownership  with  government  control.  The  chief 
preoccupation  of  Congress,  therefore,  during  the  post-armistice 
period  was  to  find  some  method  by  which  the  improved  serv- 
ice resulting  from  unity  of  operation  could  be  maintained  with- 
out resorting  to  direct  government  ownership  and  administra- 
tion. Numerous  plans  were  proposed  by  which  mergers  of 
competing  companies  might  be  made;  regional  systems  were 
mapped  out  in  accordance  with  which  the  consolidation  of 
local  roads  might  be  either  permitted  or  compelled.  The 
number  of  these  regions  varied  from  six,  as  proposed  by  the 
Director  General,  to  twenty  to  twenty-five,  as  proposed  by  the 
chairman  of  the  Senate  Committee  on  Interstate  Commerce. 
The  Esch-Cummins  bill,  as  finally  adopted,  empowers  the 
Interstate  Commerce  Commission  to  divide  the  country  into 
a  limited  number  of  regions  and  to  formulate  a  plan  for  the 
voluntary  consolidation  of  the  railroads  within  these  divisions, 
taking  into  account  the  interests  of  the  transportation  system 


PROGRAM  OF  POLITICAL  RECONSTRUCTION    289 

as  a  whole.  At  the  same  time  the  Commission  is  empowered 
in  times  of  emergency  to  assume  control  over  the  distribution 
of  rolling  stock,  over  the  joint  use  of  terminal  and  other  facil- 
ities, and  over  the  short-routing  of  traffic.  Other  items  in  the 
more  extended  control  by  the  Government  over  the  railroads 
provided  for  in  the  bill  deal  with  the  supervision  of  new  rail- 
road construction  and  extension;  the  issuance  of  mandatory 
orders  in  respect  to  safe  and  adequate  equipment;  the  deter- 
mination of  minimum  as  well  as  maximum  rates,  the  super- 
vision of  new  security  issues,  and  the  administration  of  ex- 
cess earnings  of  prosperous  roads  so  as  to  create  a  contingent 
fund  out  of  which  loans  may  be  made  to  other  railroads  in 
need.^  Taken  as  a  whole  the  new  law,  while  formally  aban- 
doning the  system  of  direct  government  administration  in 
force  during  the  war,  sets  up  an  indirect  system  of  control 
which  must  become  more  and  more  rigid  in  its  restrictions 
upon  the  free  operation  of  the  individual  roads  by  their  owners. 
The  solution  reached  by  the  bill  is  clearly  no  more  than  a  tem- 
porary expedient  marking  the  inability  of  Congress  to  see  its 
way  to  take  the  more  logical  step  which  it  must  ultimately  be 
forced  to  take..  Sooner  or  later,  whether  by  the  decisive  ac- 
tion of  the  Government  or  by  the  gradual  process  of  combina- 
tion provided  for  in  the  law,  the  last  elements  of  competition 
must  give  way  before  the  imperative  demand  for  the  greater 
efficiency  of  a  unified  system.  This  may  still  leave  the  rail- 
roads under  the  management  of  their  private  owners,  unless 
in  the  meantime  some  scheme  of  government  operation  may 
be  devised  which  will  give  assurance  to  the  public  both  of  the 

1  The  financial  provisions  of  the  bill  include  a  six-months  guar- 
antee of  pre-war  profits,  together  with  a  mandatory  order  to  the 
Commission  to  establish  rates  that  will  yield  to  the  carriers  In  each 
rate-making  group  a  net  operating  income  equal  to  5^/2  per  cent,  of 
the  aggregate  property  value  of  the  roads  in  such  group.  The  labor 
provisions  include  the  creation  of  a  Railway  Board  of  Appeals  which 
will  have  compulsory  powers  of  investigation  in  disputes  between  the 
railroads  and  their  employees  which  threaten  interference  with  inter- 
state commerce. 


290       POLITICAL  SYSTEMS  IN  TRANSITION 

efficiency  which  is  beheved  to  attend  private  management  and 
of  the  absence  of  political  interference  by  Congress  in  the  in- 
terest either  of  local  constituencies  or  of  organized  labor.^ 

The  proposal  of  the  railway  brotherhoods.  The  "  Plumb 
Plan.'*  Pending  the  decision  of  Congress  between  the  alter- 
natives of  government  ownership  and  operation  of  the  rail- 
roads and  the  reinstating  of  private  capital  and  management 
subject  to  government  supervision,  a  proposal  of  an  entirely 
different  character  was  put  forward  by  the  spokesmen  of  the 
four  brotherhoods  into  which  the  employees  of  the  railroads 
are  organized.  Under  the  name  of  the  "  Plumb  Plan  "  the 
new  scheme  advocated  that  the  railroads,  after  being  brought 
under  government  ownership,  should  be  operated  by  a  single 
private  corporation,  run  by  the  employees,  the  stock  of  which 
was  to  be  held  in  trust  for  the  benefit  of  the  employees, 
who  would  pay  the  Government  a  rental  out  of  the  receipts 
of  operation.  The  control  of  the  Government  was  to  be  ex- 
ercised through  a  board  of  directors  of  fifteen  members,  to  be 
selected  one-third  by  the  non-appointed  employees,  one-third 
by  the  appointed  officers  and  employees,  and  one-third  by  the 
President  as  representative  of  the  general  public.  Two  fea- 
tures of  the  proposed  plan  are  of  important  political  signifi- 
cance: in  the  first  place  it  marks  the  application  on  a  large 
scale  of  the  ideas  of  **  industrial  democracy,"  which  in  a  more 
radical  form  have  been  associated  with  the  principles  of  the 
Syndicalists  and  the  Industrial  Workers  of  the  World.^  It 
recognizes  the  "  partnership  "  of  labor  in  the  operation  of  the 

1  It  would  be  outside  the  scope  of  the  present  voUime  to  attempt 
more  than  the  briefest  outline  of  a  problem  of  the  greatest  complex- 
ity, and  it  is  referred  to  here  only  as  illustrating  the  wider  extension 
of  the  functions  of  government  brought  about  by  the  war.  Since  the 
above  was  written,  the  inability  of  the  railroads  to  meet  the  congestion 
of  freight  at  the  great  terminals  has  necessitated  the  resumption  of 
the  unified  operation  conducted  by  the  Federal  Government  during  the 
war. 

2  Any  connection  with  these  radical  groups  is,  it  should  be  noted, 
repudiated  by  "  Organized  Labor."     See  above,  p.  237. 


PROGRAM  OF  POLITICAL  RECONSTRUCTION     291 

railroads,  and  the  right  of  labor  to  take  an  active  share  in 
a  "  democratically  "  managed  industry.  In  the  second  place 
it  proposes  that  in  addition  to  just  wages  a  division  of  the 
surplus  earnings  of  the  railroads  be  made  as  an  incen- 
tive to  more  skilful  work.  Profits  in  excess  of  the  guaranteed 
return  on  bonds  are  to  be  divided  between  the  operating  cor- 
poration and  the  Government,  under  an  arrangement  by  which 
when  the  Government's  share  exceeds  5  per  cent  of  the  gross 
revenues  a  reduction  in  rates  is  to  be  made  to  absorb  the  share 
of  the  Government.  In  neither  house  of  Congress  did  the 
plan  receive  any  appreciable  degree  of  support,  while  the  criti- 
cism of  the  press,  including  papers  normally  sympathetic  to- 
wards labor,  was  generally  unfavorable.  The  feature  singled 
out  for  attack  was  that  the  public,  as  owners  of  the  roads, 
were  to  bear  all  the  losses,  while  the  employees  were  to  have 
a  half  share  of  the  profits.  Moreover,  the  plan  appeared  to 
repudiate  even  the  Socialistic  theory  of  government  ownership, 
which  assumes  that,  granting  just  wages,  the  service  of  the  com- 
munity will  be  a  sufficient  incentive  to  the  highest  endeavor. 
It  is  probable,  however,  that  in  spite  of  these  and  other  ob- 
jections raised  against  the  plan,  the  strong  support  which  it 
received  from  the  railway  brotherhoods  will  bring  it  again 
into  prominence  in  a  modified  form  should  the  present  com- 
promise measure  adopted  by  Congress  fail  to  prevent  a  general 
strike.  Isolated  threats  of  a  resort  to  "  direct  action  "  were 
made  at  the  time  the  anti-strike  provisions  of  the  Cummins 
bill  were  under  consideration;  and  apart  from  such  drastic 
methods  of  securing  Congressional  action  the  entrance  into 
politics  of  a  Labor  Party  and  the  announcement  of  the  Ameri- 
can Federation  of  Labor  of  its  intention  to  elect  candidates 
sympathetic  to  labor  may  well  have  the  effect  of  securing  a 
hearing  from  Congress. 

Private  versus  public  operation  of  the  telegraph  and  tele- 
phone lines.  For  the  time  being  the  advocates  of  the  exten- 
sion of  the  control  of  the  Government  over  the  telegraph  and 
telephone  systems  of  the  country  have  been  sharply  rebuffed 


292      POLITICAL  SYSTEMS  IN  TRANSITION 

by  the  prompt  return  of  the  lines  to  their  owners  after  the 
conclusion  of  the  peace  negotiations  in  Paris.  In  this  case, 
much  more  than  in  that  of  the  railroads,  the  impression  pro- 
duced of  mismanagement  by  the  government  officials  in  charge, 
together  with  the  higher  charges  for  the  service  rendered, 
combined  to  disillusion  many  of  those  who  were  favorably  dis- 
posed towards  government  ownership  of  the  lines.  It  seems 
not  unlikely,  however,  that  the  issue  of  government  ownership 
will  again  be  pressed  in  the  effort  to  find  a  solution  for  labor 
disputes  similar  to  those  which,  as  we  have  seen,  forced  the 
Government  to  take  over  the  lines  during  the  war.  More- 
over, it  is  argued  that  since  the  telegraph  and  telephone  lines 
are  closely  associated,  in  point  of  service  rendered,  with  the 
post-office  department,  it  would  require  but  a  slight  enlarge- 
ment of  the  facilities  of  the  postal  administration  to  operate 
the  two  systems.  The  higher  rates  charged  during  the  war, 
it  is  argued,  were  no  test  of  what  the  Government  might 
accomplish  in  the  way  of  reducing  rates  in  normal  times,  since 
the  conditions  of  operation  during  the  war  did  not  admit  of 
merger  of  the  equipment  and  personnel  of  the  lines  with  that 
of  the  post-office  department.  Finally,  it  is  claimed  that  the 
difficulties  attending  government  ownership  of  the  railroads, 
whose  service  is  intimately  tied  up  with  the  industrial  life  of 
the  country,  would  not  be  present  in  the  case  of  the  telegraph 
and  telephone  lines,  since  the  functions  of  the  latter  are  rela- 
tively simple  and  involve  no  questions  of  economic  policy. 
P)Ut  these  and  similar  arguments,  however  convincing  in  the 
abstract,  have  temporarily  lost  their  force  before  the  concrete 
experience  of  an  unsatisfactory  administration  of  the  lines  by 
the  Government,  with  little  or  no  allowance  made  for  the  ex- 
ceptional conditions  of  the  war.  As  in  the  case  of  the  rail- 
roads, the  persistent  belief  in  the  inefficiency  of  the  Govern- 
ment as  an  administrator  must  first  be  overcome  by  evidence 
i!iat  it  is  practically  possible  to  isolate  the  service  and  conduct 
it  upon  the  same  business  principles  which  prevail  in  success- 
ful private  companies.     Thus  far  no  steps  have  been  taken  by 


PROGRAM  OF  POLITICAL  RECONSTRUCTION    293 

Congress  to  meet  the  recommendation  of  the  President  that 
the  competition  between  the  two  leading  systems  and  other 
lesser  ones  give  way  to  the  creation  of  a  single  national  sys- 
tem. 

Government  ownership  of  the  coal  mines.  The  demand 
for  the  nationalization  of  the  coal  mines,  which  was  offered  by 
the  miners  as  a  solution  of  the  conditions  which  led  to  the 
strike  called  on  November  i,  1919,  was,  like  the  demand  for 
the  nationalization  of  the  railroads,  an  indirect  outcome,j>i-the 
control  exercised  by  the  Government  over  the  mines  during  the 
war.  The  mine  workers,  foreseeing  a  return  to  pre-war  con- 
ditions, asserted  a  right  to  be  "  democratically "  represented 
in  the  management  of  the  industry  and  at  the  same  time  claimed 
a  share  in  the  surplus  profits.  They  proposed  that  the  Govern- 
ment should  purchase  the  mines  outright,  and  that  the  industry 
should  henceforth  be  operated  under  the  management  of  a 
board  of  directors  similar  to  that  proposed  for  the  railroads 
by  the  Plumb  Plan.  The  difference  between  the  two  proposals 
lay  in  the  fact  that  the  railroads  were  already  under  govern- 
ment administration  and  must  in  any  case  require  a  large  de- 
gree of  government  control  by  reason  of  the  many  interrela- 
tions of  transportation  and  business ;  whereas  the  extent  of 
the  control  exercised  by  the  Government  over  the  coal 
mines  during  the  war  consisted  in  fixing  the  price  of  production 
and  in  regulating  the  conditions  of  distribution,  and  there 
was  normally  no  demand  upon  the  Government  to  exercise 
control  over  the  mines  except  to  the  extent  necessary  to  pro- 
tect the  public  against  extortionate  charges  by  the  mine  owners 
and  against  a  shortage  of  coal  due  to  a  general  strike  of  the 
miners.  The  failure  of  the  strike  in  the  presence  of  the  in- 
junction obtained  by  the  Government  under  the  Lever  Act 
resulted  in  a  temporary  set-back  to  the  demand  for  national- 
ization, even  though  the  wage  increases  for  which  the  strike 
was  called  were  subsequently  met  in  part.  The  menace  of 
a  general  strike  is,  however,  a  weapon  which  can  again  be 
resorted  to  under  more   favorable  conditions  should   similar 


294       POLITICAL  SYSTEMS  IN  TRANSITION 

conditions  among  the  workers  lead  them  to  press  their  claims 
in  that  way.  At  the  same  time  the  growing  shortage  in  the 
supply  of  coal  and  the  sharp  increase  in  prices  may  have  the 
effect  of  leading  the  public  at  large  to  bring  pressure  to  bear 
upon  Congress  either  to  take  over  the  mines  as  a  whole  or  to 
institute  a  system  of  administrative  control  similar  to  that  in 
force  during  the  war. 

Government  operation  of  the  merchant  marine.  We  have 
seen  the  wide  range  of  activities  performed  during  the  war 
by  the  United  States  Shipping  Board  and  the  Emergency  Fleet 
Corporation  in  connection  with  the  direction  and  control  of 
existing  shipping  facilities  as  well  as  the  construction  of  new 
ships  and  the  procuring  of  crews  to  man  them.  At  the  time 
it  was  the  belief  of  many  observers  that  such  an  extension 
of  the  functions  of  the  Government  must  inevitably  result  in 
a  permanent  policy  of  government  control,  with  the  Govern- 
ment either  in  the  role  of  competitor  with  private  shipping 
companies  or  exercising  indirect  administrative  powers  similar 
to  those  possessed  by  the  Interstate  Commerce  Commission  in 
the  case  of  the  railroads.  The  event  has  belied  these  promises. 
At  the  moment  of  present  writing,  the  Shipping  Board,  after 
having  sold  several  of  the  ships  owned  by  the  Government 
and  made  unsuccessful  efforts  to  sell  others,  has  decided  to 
await  the  action  of  Congress  as  to  the  proper  steps  to  be  taken. 
Together  with  the  Government  vessels  already  completed  or  still 
under  construction  in  American  yards  are  thirty  former  Ger- 
man passenger-liners,  the  majority  of  which  were  remodeled 
after  the  outbreak  of  war  and  used  as  transports  until  the 
fall  of  1919.  There  is  here  the  nucleus  of  what  might  be  made 
an  American  merchant  marine  adequate  to  meet  the  growing 
needs  of  foreign  commerce  if  it  can  be  found  possible  to  keep 
the  ships  under  the  American  flag.  Prior  to  the  war  the  Gov- 
ernment had  followed  the  policy  of  non-interference,  leaving 
it  to  private  capital  to  invest  in  merchant  shipping  according 
to  the  promise  of  profit,  with  the  result  that  foreign  com- 
panies secured  most  of  the  overseas  trade.     Immediately  upon 


PROGRAM  OF  POLITICAL  RECONSTRUCTION     295 

the  outbreak  of  war  the  diversion  of  British  merchant  ships 
to  uses  of  war  and  the  capture  or  internment  of  the  German 
ships  resulted  in  a  serious  impairment  of  the  faciHties  neces- 
sary to  American  trade;  and  it  was  promptly  realized  that 
henceforth  the  United  States  must  be  put  in  a  more  independent 
position  in  respect  to  its  carrying  trade.  Earlier  proposals 
to  the  same  effect,  having  chiefly  in  view  the  necessity  of 
maintaining  a  fleet  which  could  furnish  to  the  navy  auxiliary 
vessels  in  time  of  war,  had  always  been  blocked  by  the  ques- 
tion whether  subsidies  should  be  granted  by  the  Government 
to  enable  American  shippers  to  meet  the  competition  of  foreign 
countries.  Such  measures  as  the  La  FoUette  Seaman's  Act, 
by  requiring  a  higher  standard  of  working  conditions  upon 
American  vessels,  had  been  a  handicap  in  favor  of  countries 
not  maintaining  the  same  level  of  hours  of  labor  and  wages.^ 
Government  control  over  labor.  Compulsory  arbitration. 
It  was  noted  as  a  point  of  striking  significance  in  the  study 

1  While  the  proposal  of  a  merchant  marine  owned  and  operated  by 
the  Government  appears  to  have  been  definitely  repudiated  by  Con- 
gress, the  Shipping  Board,  in  attempting  to  dispose  of  the  vessels 
left  on  its  hands  at  the  close  of  the  war,  laid  down  conditions  of  sale 
which  were  intended  to  keep  the  ships  under  the  American  flag. 
Moreover,  it  was  stipulated  that  not  only  should  the  ships  be  continued 
in  American  service,  but  they  should  serve  the  routes  which  in  the 
opinion  of  the  Shipping  Board  would  best  further  American  com- 
merce, and  also  chat  the  ships  should  be  available  to  the  Government 
in  time  of  national  emergency. 

The  Jones  Merchant  Marine  Act,  as  finally  adopted,  creates  a  per- 
manent government  agency  of  control  to  be  known  as  'The  Unitx?d 
States  Shipping  Board,"  an  enlargement  of  the  former  Shipping  Board, 
whose  powers  in  respect  to  foreign  commerce  are  to  be  similar  to  those 
exercised  by  the  Interstate  Commerce  Commission  over  commerce  be- 
tween the  States.  The  act  provides  that  the  merchant  fleet  now  under 
control  of  the  Emergency  Fleet  Corporation  shall  be  sold  only  to  Amer- 
ican individuals  or  corporations,  and  that  pending  the  offer  of  fair 
prices  the  ships  shall  be  either  leased  to  American  citizens  or  operated 
by  the  board  itself.  The  act  thus  marks  a  radical  departure  in  the 
policy  of  the  Government  towards  an  American-owned  merchant  ma- 
rine. 


296      POLITICAL  SYSTEMS  IN  TRANSITION 

of  the  functions  of  the  Government  during  the  war  that  while 
the  Government  extended  its  control  over  one  part  after  an- 
other of  the  country's  industrial  life,  it  stopped  short  of  as- 
suming authority  over  the  labor  forces  engaged  in  produc- 
tion and  distribution.  Employers  were  taken  in  hand,  their 
supplies  of  raw  materials  were  curtailed,  the  prices  of  their 
products  fixed,  and  their  interests  in  general  subordinated  to 
those  of  the  war.  But  labor  maintained  all  the  while  its  inde- 
pendence of  action,  and  although  acquiescing  in  certain  limited 
measures  of  control  in  the  form  of  mediation  commissions  for 
the  settlement  of  disputes,  it  resisted  any  form  of  actual  com- 
pulsion. Serious  strikes  were  avoided  by  a  policy  of  succes- 
sive concessions  to  the  demands  made  for  higher  wages  and 
improved  conditions,  while  on  its  part  labor  refrained  from 
pressing  demands  which  the  various  mediation  and  concilia- 
tion boards  might  have  found  themselves  unable  to  concede. 
The  question  now  arises  as  to  what  measure  of  control  the 
Government  may  exercise  over  labor  in  certain  vital  indus- 
tries, now  that  the  temporary  truce  between  labor  and  capital 
is  at  an  end.  Taking  the  labor  conditions  of  the  railways 
as  an  illustration,  we  find  that  the  railway  brotherhoods  are 
willing  to  accede  to  the  settlement  of  industrial  disputes  by  a 
compulsory  judicial  board,  provided  labor  is  represented  upon 
the  board  of  directors,  as  in  the  case  of  the  "  democratically  " 
constituted  operating  company  provided  for  in  the  "  Plumb 
Plan."  In  the  absence  of  democratic  representation  labor  is 
unwilling  to  be  bound  by  the  decisions  of  an  arbitral  board. 
The  original  Cummins  bill  provided  that  ultimate  control  over 
wages  and  terms  of  employment  be  given  to  a  government 
Transportation  Board,  and  that  at  the  same  time  it  should 
be  made  illegal  to  strike.  In  answer  to  this  proposal  Mr. 
Gomi)ers,  testifying  in  the  name  of  the  American  Federation 
of  Labor  before  the  Interstate  Commerce  Committee,  asserted 
that  he  could  not  underwrite  any  measure  that  would  "  abso- 
lutely prevent  a  general  railroad  strike,"  and  that  he  would 
rather  see  the  "  country  inconvenienced  than  the  slavery  this 


PROGRAM  OF  POLITICAL  RECONSTRUCTION     297 

bill  would  cause."  The  issue  was  thus  raised  whether  in  the 
case  of  an  industry  so  closely  affecting  the  country's  vital  needs 
Congress  might  undertake  to  protect  the  public  against  the 
possible  unreasonable  demands  of  organized  labor  as  well  as 
against  the  arbitrary  decisions  of  the  owners  themselves.  The 
solution  reached  in  the  Esch-Cummins  bill  consists  in  the  crea- 
tion of  a  Labor  Board  of  nine  members,  to  be  appointed  by 
the  President,  which  is  to  have  advisory  power  over  wages, 
hours,  and  conditions  of  work.  The  Labor  Board  is  to  rep- 
resent equally  the  public,  the  employers,  and  the  employees, 
and  while  no  element  of  compulsion  enters  into  its  awards, 
reliance  is  apparently  placed  upon  public  opinion  to  enforce 
the  acceptance  of  its  decisions.  The  idea  of  compulsory  arbi- 
tration in  the  sense  of  making  the  awards  of  the  court  binding 
upon  the  parties,  so  as  to  authorize  the  Government  to  compel 
their  execution,  is  foreign  to  American  traditions.  But  com- 
pulsory public  hearings  before  strikes  are  called,  with  general 
public  opinion  as  the  sanction  of  the  observance  of  the  award, 
are  necessary  to  the  protection  of  the  public  in  its  dependence 
upon  vital  industries. 


CHAPTER  XII 

THE   PROGRAM    OF   INTERNATIONAL   RECONSTRUCTION 

Effect  of  the  war  upon  international  relations.  Changed 
position  of  the  United  States.  It  is  impossible  to  outline 
the  problems  of  political  reconstruction  in  the  United  States 
created  by  the  war  without  reference  to  the  changes  that 
must  inevitably  be  brought  about  in  the  foreign  policies, 
and  to  some  extent  in  the  domestic  policies  of  the  country, 
by  the  new  international  relationships  established  among 
the  states  of  the  world.  Even  though  the  Senate  has  re- 
fused to  ratify  the  treaty  of  peace  with  Germany  with  the 
Covenant  of  the  League  of  Nations  attached  to  it,  it  is  clear 
that  the  participation  of  the  United  States  in  some  form  of 
international  organization  to  maintain  the  peace  of  the  world 
will  continue  to  be  a  pressing  issue  in  the  years  to  come. 
Prior  to  the  war  the  United  States  had  lived  in  a  state  of 
political  isolation  from  the  great  powers  of  Europe,  moving 
in  a  sphere  of  its  own  outside  the  orbit  of  their  alliances  and 
their  common  councils.  Side  by  side,  however,  with  this  policy 
of  political  isolation  there  had  developed  a  policy  of  economic 
internationalism  based  upon  the  existing  facts  of  world  trade, 
just  as  the  political  attitude  had  been  based  upon  traditions 
inherited  from  the  days  of  Washington.  It  remained  for  the 
war  to  show  the  inconsistency  of  the  two  positions.  The 
central  incident  attending  its  outbreak  struck  at  the  very  foun- 
dations of  the  system  of  political  isolation.  For  it  placed  the 
United  States  in  the  position  of  being  a  silent  and  inactive  on- 
looker in  the  presence  of  a  flagrant  breach  of  international 
good  faith.  The  moral  reaction  of  the  country  against  the 
violation  of  the  neutrality  of  Belgium  was  soon  followed  by  a 

298 


INTERNATIONAL  RECONSTRUCTION        299 

sharp  realization  that  its  economic  interests  were  being  vitally 
affected  by  the  conflict,  while  the  lives  of  its  citizens  were  en- 
dangered by  modern  methods  of  warfare  at  sea.  At  the  same 
time  altruistic  motives  were  aroused  when  the  Government 
undertook  to  play  the  part  of  mediator  between  the  belliger- 
ents by  proposing  a  statement  of  the  terms  upon  which  they 
would  be  willing  to  conclude  peace.  The  subsequent  partici- 
pation of  the  United  States  in  the  war  led  to  successive  state- 
ments of  the  principles  of  a  just  peace  and  of  the  necessity 
of  an  organization  to  make  them  effective.  When,  however, 
the  negotiations  of  the  peace  conference  resulted  in  the  creation 
of  the  League  of  Nations  as  an  integral  part  of  the  several 
treaties  of  peace,  opposition  of  the  sharpest  character  de- 
veloped. The  dual  function  assigned  to  the  League,  of  be- 
ing at  once  the  administrator  of  the  provisions  of  the  treaties 
and  the  potential  guarantor  of  the  future  peace  of  the  world, 
aligned  against  the  Covenant  both  the  smaller  number  of  those 
who  were  opposed  to  the  specific  provisions  of  the  treaty  of 
peace  with  Germany  and  the  larger  number  of  those  who  were 
opposed  to  the  participation  of  the  United  States  in  the  League 
whether  in  the  form  proposed  or  in  any  form  whatever. 
Earlier  test  votes  as  well  as  the  final  vote  by  which  the  treaty 
failed  of  ratification  on  March  19  showed  a  large  majority 
in  favor  of  the  general  principle  represented  by  the  Covenant 
of  the  League,  a  majority,  less  than  the  necessary  two-thirds, 
in  favor  of  the  actual  League,  subject  to  a  series  of  qualify- 
ing reservations,  a  minority  standing  fast  on  the  Covenant  with- 
out reservations  affecting  its  substance,  and  a  small  group  of 
"  irreconcilables  "  who  were  opposed  to  the  League  in  principle. 
The  result  was  a  victory  for  the  "  irreconcilables,"  constituting 
less  than  one-fifth  of  the  total  vote  of  the  Senate. 

The  principle  of  state  sovereignty.  The  repudiation, 
therefore,  by  the  Senate  of  the  Covenant  of  the  League  of 
Nations  still  leaves  intact  the  general  principles  upon  which 
the  League  is  based;  and  in  consequence  it  remains  an  im- 
portant problem  of  reconstruction  to  determine  to  what  extent 


300       POLITICAL  SYSTEMS  IN  TRANSITION 

these  new  principles  are  to  limit  or  restrict  the  powers  con- 
ferred by  the  Constitution  upon  the  several  agencies  of  the 
United  States  Government.  The  fundamental  conception  of 
the  new  order  of  international  relationships  is  that  of  the 
collective  responsibility  of  the  nations  at  large  for  the  peace 
of  the  world.  Before  1914  the  dominant  principle  of  inter- 
national law  was  to  be  found  in  the  mutual  recognition  by 
the  nations  of  their  individual  sovereignty.  Precisely  what 
was  meant  by  the  term  "  sovereignty  "  is  difficult  to  determine, 
owing  to  the  fact  that  the  theory  of  international  law  and  the 
facts  of  international  life  were  not  in  harmony.  As  a  legal 
theory  sovereignty  called  for  the  supreme  right  of  the  state 
to  direct  the  administration  of  its  internal  affairs  and  to  deter- 
mine the  character  of  its  foreign  policies  without  interference 
from  other  states.  But  it  is  obvious  that  the  theory  assumed 
an  independence  of  action  which  was  daily  contradicted  by  the 
facts  of  international  intercourse.  In  numerous  details  the 
hands  of  the  nations  were  bound  by  an  elaborate  array  of 
treaties  and  customs,  which  were  wholly  inconsistent  with  the 
strict  theory  of  state  sovereignty.  But  these  treaties  and  cus- 
toms related  merely  to  the  lesser  interests  of  the  nations.  In 
matters  involving  national  self-protection  or  important  com- 
mercial policies  the  abstract  theory  of  sovereignty  was  seen 
to  be  an  actual  reality.  The  United  States,  with  other  nations, 
reserved  to  itself  complete  freedom  of  action  in  the  determina- 
tion of  the  measures  upon  which  it  believed  its  security  and 
prosperity  to  depend.  In  respect  to  these  questions  the  sover- 
eign state  undertook  to  determine  for  itself  the  validity  of 
its  own  claims  of  right.  If  a  dispute  arose  between  itself 
and  another  state  involving  such  matters,  it  remained  for  the 
individual  state  to  decide  whether  it  would  submit  the  case 
to  arbitration,  and  if  so,  upon  what  conditions.  The  result 
of  this  doctrine  of  sovereignty  was  that  the  authority  of  in- 
ternational law  remained  of  a  very  limited  character.  On  the 
most  important  problems  of  international  relations  there  was 
no  rule  of  conduct  to  be  found,  and  even  in  respect  to  those 


INTERNATIONAL  RECONSTRUCTION        301 

questions  upon  which  a  rule  of  law  existed  each  nation  re- 
mained the  interpreter  of  its  own  rights  and  obligations  in 
the  case. 

National  armaments  and  international  anarchy.  Con- 
sistently with  the  principle  which  made  each  nation  the  ulti- 
mate arbiter  of  its  own  rights  and  obligations,  each  nation 
undertook  to  rely  solely  upon  its  own  efforts  to  maintain  what 
it  claimed  as  justly  due  to  it.  Individual  self-protection 
was  the  logical  corollary  of  individual  self-determination  of 
rights.  War  thus  became  a  legal  remedy,  and  the  results  ob- 
tained by  a  successful  war  acquired  legal  validity  in  spite  of 
the  fact  that  force  had  been  used  to  secure  them.  What  should 
be  the  measure  of  the  armaments  maintained  by  each  state  for 
alleged  purposes  of  self-defense  was,  like  the  question  of  the 
propriety  of  their  use,  left  to  the  individual  nation  to  decide. 
Each  government  took  counsel  with  itself  as  to  its  needs  and 
as  to  its  financial  resources  and  struck  a  balance  between 
them.  Where  national  resources  were  inadequate,  the  state 
sought  alliances  with  other  states  similarly  situated,  and  these 
alliances  were  in  turn  met  by  counter-alliances  of  opposing 
groups.  A  "  balance  of  power  "  was  thus  secured,  which  af- 
forded a  measure  of  security  so  long  as  the  equilibrium  could 
be  kept  stable.  The  resulting  situation  can  without  exag- 
geration be  described  as  a  condition  of  international  anarchy. 
There  was  a  complete  lack  of  a  sense  of  collective  responsibility 
on  the  part  of  the  nations  as  a  body.  The  dominant  concep- 
tion of  national  law,  that  the  protection  of  the  rights  of  the 
individual  citizen  is  best  attained  by  the  cooperative  action 
of  the  community  in  establishing  common  agencies  of  justice, 
did  not  enter  into  the  code  of  international  law.  On  many 
of  the  important  questions  of  diplomacy  which  arose  during  the 
generation  preceding  the  war  the  leading  nations  of  Europe 
and  America  entertained  similar  conceptions  of  justice  and 
right,  but  practically  no  attempt  was  made  to  coordinate  those 
conceptions  and  construct  from  them  a  collective  international 
judgment.     In  consequence,  the  crisis  which  arose  with  such 


302       POLITICAL  SYSTEMS  IN  TRANSITION 

dramatic  suddenness  in  July,  19 14,  found  the  nations  com- 
pletely lacking  not  only  in  an  organization  to  make  their  com- 
mon judgment  effective,  but  even  in  the  conviction  of  an  ob- 
ligation to  act  in  concert  for  the  maintenance  of  peace.  It 
was  therefore  legally  possible  for  the  United  States,  in  the 
presence  of  a  clear  and  gross  violation  of  international  law, 
to  issue  a  declaration  of  neutrality  and  assume  a  position  of 
official  indifference  to  the  outcome  of  the  war. 

Collective  responsibility  under  a  League  of  Nations.  The 
subsequent  abandonment  by  the  United  States  of  its  neutral 
position,  while  primarily  brought  about  by  the  ruthless  attack 
upon  its  rights  by  one  of  the  belligerents,  was  undoubtedly 
made  possible  by  the  realization  on  the  part  of  the  American 
people  of  the  fundamentally  illogical  character  of  international 
law.  The  neutrality  of  third  parties  in  the  presence  of  public 
crime  was  a  position  so  completely  at  variance  with  the  primary 
conception  of  law  and  order  that  it  could  not  but  provoke 
general  condemnation.  At  the  same  time  it  was  clear  that  the 
American  people  would  not  relinquish  their  traditional  atti- 
tude towards  the  political  controversies  of  Europe  except  in 
connection  with  some  general  plan  for  preventing  those  contro- 
versies from  culminating  in  war.  American  intervention  in 
Europe  must  take  the  form  of  supporting  measures  to  prevent 
the  commission  of  acts  of  injustice,  not  of  waiting  until  wars 
had  broken  out  and  then  taking  sides  against  the  aggressor. 
If  the  principle  of  collective  responsibility  was  to  take  the 
place  of  the  old  legalized  anarchy,  it  must  be  supplemented 
by  an  organization  capable  of  expressing  the  common  judg- 
ment of  the  nations  as  a  body  upon  questions  in  dispute  be- 
tween individual  states,  and  capable  of  bringing  the  common 
will  of  the  nations  to  bear  effectively  upon  the  contending 
parties.  This  necessary  connection  between  a  new  principle 
of  international  relations  and  an  organization  to  make  it  effec- 
tive found  formal  expression  in  the  Covenant  of  the  League 
of  Nations;  and  in  spite  of  the  present  failure  of  the  United 
States  to  participate  in  the  League  because  of  difficulties  aris- 


INTERNATIONAL  RECONSTRUCTION        303 

ing  from  the  concrete  functions  of  the  League  it  is  believed 
that  the  principle  of  collective  responsibility  which  the  League 
embodies  has  been  generally  accepted  by  the  American  people. 
Article  XI  of  the  Covenant  states  in  explicit  terms  that  ''  any 
war  or  threat  of  war,  whether  immediately  affecting  any  of 
the  high  contracting  parties  or  not,  is  hereby  declared  a  matter 
of  concern  to  the  League."     Wars  and  threats  of  wars  have, 
indeed,  always  been  a  matter  of  concern  to  the  nations  individu- 
ally; they  are  here  declared  to  be  of  concern  to  the  nations 
in  their  collective  capacity  as  members  of  the  League.     Again 
in  Article  XVI  it  is  laid  down  that  if  any  of  the  contracting 
parties  should  break  the  agreements  to  arbitrate  contained  in 
Article  XII  it  shall  thereby  "  ipso  facto  be  deemed  to  have 
committed  an  act  of  war  against  all  the  other  members  of  the 
League."     None  of  the  reservations  which  prevented  the  final 
ratification  of  the  treaty  of  peace  repudiated  the  principle  of 
collective  responsibility  here  recognized.     Even  the  guarantee 
contained  in  Article  X,  by  which  the  members  of  the  League 
agreed  "  to  respect  and  preserve  as  against  external  aggression 
tlie  territorial  integrity  and  existing  political  independence  of 
all  the  members  of  the  League,"  was  not  rejected  because  of 
the  principle  of  mutual  protection  involved,  but  merely  be- 
cause of  doubts  as  to  the  possible  application  of  the  principle. 
It  was  believed  that  the  guarantee  might  have  the  effect  of  con- 
firming existing  territorial  possessions  in  certain  cases,  such  as 
that  of  Ireland  or  of  Shantung,  where  they  were  believed  to 
involve  injustice,  and  of  committing  Congress  to  a  declaration 
of  war  without  its  prior  consent  in  each  case.     It  is  true,  how- 
ever, that  the  reservation  by  which  the  United  States  retains 
the  right  to  decide  for  itself  what  questions  are  within  its  do- 
mestic jurisdiction,  together  with  the  elaborate  enumeration  of 
those  questions,  seriously  narrows  the  application  of  the  prin- 
ciple of  collective  responsibility,  and  leaves  it  not  altogether 
certain  whether  the  principle  itself  has  not  been  repudiated  in 
conceding  to  it  so  limited  a  field  in  which  to  operate. 


304      POLITICAL  SYSTExMS  IN  TRANSITION 

Conditions  of  success  of  an  international  organization  to 
maintain  peace.  In  view  of  present  conditions  any  estimate 
of  the  part  which  the  United  States  may  in  time  come  to  play, 
under  altered  circumstances,  in  the  development  of  an  inter- 
national organization  to  give  effect  to  the  principle  of  collec- 
tive responsibility  would  be  apart  from  the  concrete  problems 
raised  by  the  present  study.  But  this  does  not  dispense  us 
from  the  necessity  of  examining  briefly  the  conditions  upon 
which  such  an  organization  must  depend  for  its  success,  as 
well  as  the  effect  which  those  conditions  must  have  upon  the 
agencies  of  government  within  the  individual  states  composing 
the  future  league.  For  while  the  Senate  has  been  unable  to 
agree  upon  the  terms  upon  which  it  would  be  willing  to  have 
the  United  States  become  a  member  of  the  present  League,  it  is 
clear  that  the  participation  of  the  United  States  in  an  amended 
form  of  the  League  must  continue  to  be  a  leading  issue 
in  the  policies  of  the  great  political  parties,  and  must  find 
expression  in  the  party  platforms  and  in  the  campaign  ad- 
dresses which  are  part  of  the  political  education  of  the  Amer- 
ican voter.^  This  examination  of  the  conditions  of  success  of 
an  international  organization  for  the  maintenance  of  peace  is 
all  the  more  important  because  of  the  fact  that  there  appears 
to  be  a  widespread  misunderstanding  of  the  true  character  of 
a  league  of  nations.  Many  who  reject  the  present  League 
profess  to  believe  in  an  ideal  league,  a  league  which  shall  be 
effective  to  prevent  war  and  yet  not  encroach  upon  national 
sovereignty,  a  league  which  shall  settle  disputes  between  the 
nations  on  a  basis  of  justice  and  yet  call  for  no  sacrifices 
from  the  individual  members  and  leave  them  untrammelled  in 

1  Since  the  above  was  written  the  Republican  Party,  at  its  National 
Convention  at  Chicago,  adopted  a  platform  in  which,  while  repudiating 
the  Covenant  of  the  League  of  Nations  as  signed  by  the  President  at 
Paris,  the  party  proclaims  itself  in  favor  of  an  international  association 
"  which  shall  maintain  the  rule  of  public  right  by  development  of  law 
and  the  decisions  of  impartial  courts  and  which  shall  secure  instant  and 
general  international  conference  whenever  peace  shall  be  threatened  by 
political  action." 


INTERNATIONAL  RECONSTRUCTION        305 

the  control  of  all  matters  which  they  at  present  regard  as 
domestic  interests.  It  will  be  found,  however,  that  many  of 
the  objections  which  have  been  raised  against  the  present 
League  hold  with  equal  weight  against  any  form  of  interna- 
tional organization  which  has  a  similar  object  in  view;  and 
unless  these  objections  are  fairly  met  the  discussions  of  ideal 
and  actual  leagues  will  lead  to  no  tangible  result. 

Restrictions  upon  "  sovereignty."  In  the  first  place  no 
international  organization  is  possible  which  does  not  encroach 
to  some  degree  upon  the  sovereignty  of  its  member  states. 
Even  as  understood  in  the  recent  past  sovereignty  did  not  ex- 
clude numerous  restrictions  upon  arbitrary  conduct;  but,  as 
we  have  seen,  the  restrictions  bore  only  upon  the  lesser  interests 
of  the  nations.  In  the  future  it  is  clear  that  each  step  in 
the  direction  of  restraining  the  free  will  of  the  individual  state 
through  the  agencies  of  arbitration  must  to  a  corresponding 
degree  narrow  the  field  in  which  sovereignty  may  operate. 
To  advocate  a  league  which  is  "  compatible  with  the  sover- 
eignty of  the  United  States  "  is  either  to  demand  things  which 
are  mutually  exclusive,  or  else  to  use  the  term  sovereignty  in 
a  more  restricted  sense  than  international  law  has  attributed 
to  it  in  the  past.  If  by  sovereignty  is  meant  local  autonomy, 
the  right  of  each  state  to  decide  for  itself  matters  of  purely 
domestic  concern  and  to  follow  its  own  ideals  of  national 
progress  without  interference  from  other  states,  it  may  still  be 
possible  to  speak  of  a  league  of  sovereign  states.^  But  if 
sovereignty  is  to  include  the  whole  range  of  domestic  and 
foreign  policies,  even  where  those  policies  come  into  conflict 
with  those  of  other  states,  it  is  obvious  that  there  is  no  com- 
patibility between  sovereignty  and  the  fundamental  conception 
of  a  league  of  nations.  The  reservation  adopted  by  a  major- 
ity of  the  Senate  which  declared  that  "  all  domestic  and  polit- 

1  The  reader  will  recall  the  curious  illusion  which  led  to  the  an- 
nouncement in  the  Articles  of  Confederation  of  1781  that  "each  State 
retains  its  sovereignty,  freedom,  and  independence."  Subsequent  pro- 
visions contained  a  practical  negative  on  each  point. 


3o6       POLITICAL  SYSTEMS  IN  TRANSITION 

ical  questions  relating  wholly  or  in  part  to  its  internal  affairs, 
including  immigration,  labor,  coastwise  traffic,  the  tariff,  com- 
merce, the  suppression  of  traffic  in  women  and  children,  and 
in  opium  and  other  dangerous  drugs,  are  solely  within  the 
jurisdiction  of  the  United  States  and  are  not  under  this  treaty 
to  be  submitted  in  any  way  either  to  arbitration  or  to  the 
consideration  of  the  Council  or  of  the  Assembly  of  the  League 
of  Nations  "  came  close  to  an  assertion  of  unlimited  sover- 
eignty. Similar  reservations  adopted  by  the  other  powers  as 
a  condition  of  entering  the  proposed  League  would  practically 
negative  the  working  powers  of  the  League.  In  like  manner 
a  reservation  by  each  member  of  the  League  of  its  own  equiva- 
lent of  the  American  Alonroe  Doctrine  would  carve  out  from 
the  jurisdiction  of  the  League  those  very  problems  which  if 
left  to  the  arbitrary  judgment  of  the  individual  state  must 
result  in  war.  It  may  well  be  that  under  the  present  political 
conditions  of  Europe  a  majority  of  the  Senate,  perhaps  of  the 
people  of  the  United  States,  are  unwilling  to  entrust  to  the 
Council  or  the  Assembly  of  the  League  the  questions  set  forth 
in  the  reservation ;  but  unless  it  is  recognized  that  all  questions 
which  affect  the  peace  of  the  world,  whether  belonging  to  the 
class  traditionally  called  domestic  or  not,  are  properly  a  sub- 
ject for  international  inquiry  and  arbitration,  it  is  futile  to 
talk  of  a  future  and  better  league  of  nations.  The  terms 
"  super-state,"  "  international  government,"  **  international 
federation,"  appear  to  be  obnoxious  even  to  those  who  favor 
an  organized  society  of  nations.  Yet  the  facts  represented  by 
those  terms  must  ultimately  be  faced  as  an  essential  condition 
of  "  collective  responsibility "  when  reduced  to  a  concrete 
working  basis. 

The  need  of  international  legislation.  The  fundamental 
problem  which  any  form  of  international  organization  must 
sooner  or  later  take  up  is  the  creation  of  a  clearer  and  more 
comprehensive  code  of  international  rights  and  duties.  Many 
of  the  international  disputes  that  have  arisen  in  the  past  have 
been  due  not  so  much  to  an  unwillingness  on  the  part  of  the 


INTERNATIONAL  RECONSTRUCTION        307 

nations  to  abide  by  the  law  as  to  the  absence  of  any  clear 
rule  by  which  their  conflicting  claims  might  be  judged.  Inter- 
national law  has  been  allowed  to  develop  by  the  slow  growth 
of  custom  and  by  the  conclusion  of  separate  treaties  between 
individual  nations.  The  international  conferences  that  met  at 
The  Hague  in  1899  and  1907,  which  might  have  enlarged  the 
domain  of  international  law  and  laid  the  basis  of  a  construc- 
tive code  of  rights  and  duties,  limited  their  activities  to  pro- 
jects of  voluntary  arbitration  and  to  restrictions  upon  the  con- 
duct of  war.  The  result  was  that  the  most  fundamental  rights 
of  national  existence  either  remained  outside  the  code  of  inter- 
national law,  or  were  covered  by  such  general  principles  as  to 
afford  no  adequate  basis  of  adjustment  in  cases  of  conflict. 
The  right  of  self-preservation  remained  in  as  primitive  a  form 
as  in  the  days  of  self-help  between  private  individuals.  Self- 
protection  justified  intervention  in  the  affairs  of  another  state, 
but  it  was  not  clear  under  what  circumstances  this  right  might 
be  exercised.  Self-defense  justified  national  armaments,  but 
there  were  no  limitations  as  to  the  size  of  such  armaments, 
and  alleged  self-defense  easily  became  a  cover  for  designs  of 
aggression.  The  self-determination  of  nationalities  was  not 
recognized  as  a  principle  in  the  creation  of  new  states;  the 
right  to  abate  a  nuisance  was  unknown  as  a  rule  of  law; 
and  the  right  to  protect  citizens  in  foreign  countries  was  so 
uncertain  as  to  give  rise  to  frequent  disputes.  To  an  even 
greater  degree  the  economic  interests  of  the  nations  remained 
outside  the  scope  of  international  law.  A  nation  lacking  the 
raw  materials  of  industry  struggled  as  best  it  might  to  ob- 
tain them  from  other  more  favored  nations ;  exclusive  control 
of  the  resources  of  undeveloped  nations  became  a  legitimate 
object  of  national  policy;  while  foreign  markets  for  the  sur- 
plus products  of  industry  and  favorable  opportunities  for  the 
investment  of  capital  became  the  object  of  the  sharpest  com- 
petition. In  the  face  of  these  facts  it  cannot  be  doubted  that 
the  first  step  in  the  development  of  an  effective  league  of 
nations  must  be  the  provision  for  some  form  of  international 


3o8       POLITICAL  SYSTEMS  IN  TRANSITION 

legislature  which  shall  undertake  the  task  of  framing  a  con- 
structive code  of  law  governing  the  political  and  economic 
rivalries  of  the  nations.  Obviously  such  a  code,  even  in  its 
first  most  tentative  form,  must  restrict  to  some  degree  the 
legislative  powers  of  national  parliaments.  To  those  who  be- 
lieve in  the  principle  of  "  a  governed  world  "  the  question  is, 
in  reality,  not  whether  an  attempt  shall  be  made  to  formulate 
new  rules  of  law  to  take  the  place  of  the  existing  political 
and  economic  anarchy,  but  merely  whether  the  rules  adopted 
by  the  legislative  agency  of  the  international  organization  shall 
require  the  ratification  of  Congress  before  they  can  become 
binding  upon  the  United  States.  On  this  point  it  need  only 
be  said  that  so  long  as  the  central  parliament  of  the  nations 
is  not  a  parliament  of  the  peoples,  but  of  delegates  appointed 
by  the  Governments  of  the  several  states,  it  can  scarcely  be 
expected  that  its  enactments  would  be  accepted  by  the  nations 
as  binding  upon  them  without  the  express  consent  of  their 
national  legislatures  in  each  case.  In  spite  of  the  delays  and 
evasions  incident  to  individual  ratification  by  each  state,  at 
the  present  stage  of  international  development  it  is  not  feasible 
to  demand  that  agreements  reached  by  an  international  as- 
sembly should  have  the  final  and  authoritative  force  of  national 
statutory  law. 

The  scope  of  arbitration.  The  progress  of  international 
arbitration  must  depend  in  large  part  upon  the  development 
of  a  code  of  substantive  law.  Not  that  in  the  absence  of  a 
clear  rule  of  rights  and  duties  it  is  not  possible  for  the  nations 
to  submit  to  inquiry  and  arbitration  disputes  that  arise  be- 
tween them,  in  the  hope  that  a  principle  of  justice  may  be 
found  to  fit  the  case  in  hand;  but  that  the  clearer  the  mutual 
rights  and  duties  of  the  nations  become  the  fewer  disputes 
will  arise  between  them  and  the  less  often  will  there  be  a 
claim  that  a  particular  dispute  involves  the  honor  or  the  vital 
interests  of  the  nations  involved.  The  plan  of  an  international 
court  having  general  and  compulsory  jurisdiction  over  the  dis- 
putes of  the  nations,  in  the  same  way  that  suits  between  citi- 


INTERNATIONAL  RECONSTRUCTION       309 

zens  are  submitted  to  the  jurisdiction  of  national  courts,  has 
thus  far  always  been  regarded  by  statesmen  as  impracticable 
in  a  world  of  nations  so  diverse  in  political  character  and 
material  interests.  The  Second  Hague  Conference  succeeded 
in  registering  a  general  approval  of  "the  principle  of  com- 
pulsory arbitration,"  but  could  not  reach  an  agreement  mak- 
ing the  principle  applicable  even  to  a  limited  range  of  cases. 
The  general  arbitration  treaties  which  the  United  States  has 
from  time  to  time  entered  into  have  regularly  left  some  loop- 
hole by  which  the  Government  might  evade  the  necessity  of 
arbitrating  a  particular  dispute  should  it  deem  it  inexpedient 
to  do  so.  The  Root  treaties  of  1908  made  a  specific  exception 
of  disputes  affecting  "  the  vital  interests,  the  independence,  or 
the  honor  of  the  two  contracting  states."  The  Taft  or  Knox 
treaties  of  191 1  divided  disputes  into  such  as  were  "justiciable 
in  their  nature  "  and  such  as  were  not  justiciable,  the  latter 
being  excepted  from  the  obligation  to  arbitrate.  The  Bryan 
treaties  omitted  the  distinction  between  the  character  of  the 
disputes,  but  imposed  no  other  obligation  upon  the  parties 
than  to  refrain  from  declaring  war  pending  the  investigation 
and  report  of  an  international  commissidn.  Even  the  Covenant 
of  the  League  of  Nations  does  no  more  than  follow  the  Bryan 
treaties  in  requiring  its  members  not  to  resort  to  war  pend- 
ing the  submission  of  a  dispute  to  inquiry  or  to  arbitration; 
and  no  obligation  is  imposed  to  accept  the  award  rendered 
except  the  negative  obligation  of  not  making  war  upon  a  state 
which  complies  with  the  recommendations  made  b>  the  Council 
or  the  Assembly.  Questions  within  the  domestic  jurisdiction 
of  one  or  other  of  the  parties  are  excluded  from  the  obliga- 
tion to  arbitrate,  but  the  decision  as  to  whether  a  particular 
dispute  falls  within  that  class  is  entrusted  to  the  Council 
of  the  League. 

Objections  to  compulsory  arbitration.  That  the  difficulties 
in  the  way  of  general  and  compulsory  arbitration  are  very 
real  ones  cannot  be  denied.  For  the  most  part  they  are  due, 
as  we  have  seen,  to  the  absence  of  a  definite  code  of  inter- 


3IO      POLITICAL  SYSTEMS  IN  TRANSITION 

national  rights  and  duties,  which  is  in  turn  due  to  the  marked 
diversities  of  national  character  and  of  political  and  economic 
interests  which  exist  among  the  states  of  the  world.  Equality 
before  the  law  is  a  principle  difficult  of  application  in  a  world 
consisting  of  some  forty-six  states,  large  and  small,  of  vary- 
ing degrees  of  material  progress,  and  the  different  ideals  of 
civilization.  Thus  far  little  attempt  has  been  made  to  cut 
across  state  boundaries  by  the  formulation  of  fundamental 
interests  common  to  the  nations  of  the  world  as  a  body;  and 
such  efforts  as  have  been  made  in  that  direction  have  been 
popularly  discredited  by  their  association  with  radical  labor 
movements.^  Yet  until  such  a  basis  of  common  fundamental 
interests  can  be  laid,  and  until  confidence  has  been  created  that 
justice  can  be  better  obtained  by  the  impartial  decision  of  an 
international  tribunal  than  by  resort  to  individual  self-help,  it 
is  not  to  be  expected  that  the  nations  will  agree  to  submit  their 
disputes  to  arbitration  without  exception  of  the  character  of 
the  interests  involved  and  pledge  themselves  in  advance  to 
carry  out  the  award  of  the  court.  For  the  present  no  more 
can  be  hoped  than  that  courts  of  optional  jurisdiction  may 
be  established,  before  which  disputes  can  be  brought  and  sub- 
jected to  discussion  in  the  light  of  such  general  principles  of 
justice  as i prevail  among  the  nations.  A  more  permanent  court 
has  been  proposed  for  the  settlement  of  disputes  readily  sus- 
ceptible of  a  legal  decision,  leaving  the  so-called  "  political " 
disputes  to  the  decision  of  temporary  arbitration  tribunals 
chosen  by  the  contending  parties  for  the  particular  case  in 
hand.  Ultimately  it  may  be  possible  to  introduce  into  inter- 
national law  the  rule  of  national  law  which  admits  no  ex- 

1  It  is  not  overlooked  that  there  have  been  many  international  liter- 
ary and  scientific  associations  of  a  private  character  whose  activities 
hax-^  helped  to  draw  together  persons  of  similar  interests,  and  that 
there  are  in  existence  international  administrative  agencies,  such  as 
tiie  Universal  Postal  Union,  created  by  the  states  themselves  for  the 
purpose  of  regulating  matters  of  common  convenience;  but  in  neither 
case  do  the  subjects  involved  reach  to  those  more  vital  interests  which 
are  the  real  causes  of  international  conflict. 


INTERNATIONAL  RECONSTRUCTION       311 

ceptions  from  the  obligation  to  arbitrate.  In  the  meantime 
it  must  at  least  be  recognized  that  the  reservation  by  the 
Senate  from  the  jurisdiction  of  the  international  court  of  the 
wide  range  of  questions  above  enumerated  can  be  justified 
only  as  a  temporary  policy,  and  that  it  is  inconsistent  with  the 
basic  principle  of  an  effective  league  of  nations.  It  is  only  by 
a  gradual  approximation  to  those  fundamental  conceptions 
of  law  which  have  brought  orderly  government  within  national 
boundaries  that  international  law  can  become  adequate  to  off- 
set the  forces  that  make  for  war. 

National  armaments  and  international  execution.     Inti- 
mately associated  with  the  problem  of  formulating  a  code  of 
rights  and  duties  and  of  providing  courts  for  the  settlement 
of  conflicting  claims  is  the  question  of  providing  an  effective 
sanction  for  the  rule  of  law  thus  adopted.     Hitherto  inter- 
national law  has  been  lacking  in  any  sanction  for  its  rules 
other  than  the  moral  sanction  of  the  approval  or  disapproval 
of  unorganized  public  opinion  in  the  several  nations.     There 
has  been  no  executive  body  whose  duty  it  was  to  give  effect 
even  to  the  lesser  rules  which  had  come  to  be  recognized  as 
binding  by  custom  or  which  had  been  adopted  by  treaty.     But 
while  it  has  long  been  recognized  in  principle  that  some  co- 
ordinated action  on  the  part  of  the  nations  as  a  body  was 
needed  to  restrain  individual  offenders  against  the  law,   the 
alliances  and  counter-alliances  of  Europe  have  made  even  the 
most  tentative  steps  towards  such  cooperation  appear  imprac- 
ticable.    The  Covenant  of  the  League  of  Nations  meets  the 
need  of  a  physical  sanction  of  international  law  by  authorizing 
two  limited  forms  of  concerted  action :     Article  XVI  provides 
that  a  breach  of  the  agreement  to  arbitrate  shall  be  regarded 
as  an  act  of  war  against  all  the  other  members  of  the  League, 
and  shall  be  followed  by  a  "  severance  of  all  trade  or  financial 
relations  "  between  the  members  of  the  League  and  the  offend- 
ing state.     Should  this  economic  boycott  prove  ineffectual,  or 
should  it  require  the  support  of   armed   forces,  the  Council 
of  the  League  is  authorized  in  such  cases  to  recommend  to 


312       POLITICAL  SYSTEMS  IN  TRANSITION 

the  several  governments  concerned  "  what  effective  military 
or  naval  force  the  members  of  the  League  shall  severally  con- 
tribute to  the  armed  forces  to  be  used  to  protect  the  cove- 
nants of  the  League."  Whatever  criticism  may  be  directed 
against  the  dangers  to  which  these  two  forms  of  international 
sanction  might  give  rise  under  present  conditions,  no  advo- 
cate of  an  international  organization  for  the  maintenance  of 
peace  can  fail  to  realize  that  the  principle  of  cooperation  upon 
which  they  are  based  is  sound.  Competitive  armaments  are 
directly  at  variance  with  the  principle  of  collective  responsi- 
bility. Yet  no  progress  can  be  made  in  the  direction  of  reduc- 
ing national  armaments  until  evidence  is  forthcoming  that  the 
international  organization  will  be  able  to  afford  to  its  members 
a  measure  of  protection  equivalent  to  that  which  they  believe 
themselves  to  possess  in  their  own  individual  armies  and 
navies.^     This  protection  in  turn  can  only  be  obtained  on  the 

^It  is  instructive  to  note  that  in  December,  1919,  the  General  Board 
of  the  United  States  Navy  recommended  that  unless  some  limitation 
be  placed  upon  the  size  of  armaments  by  international  agreements  or 
through  the  League  of  Nations,  the  American  navy  should  be  gradu- 
ally increased  until  it  should  ultimately  be  "  equal  to  the  most  power- 
ful maintained  by  any  other  nation  of  the  world."  This  increase  was 
justified  on  the  ground  that  "the  United  States  borders  upon  two 
oceans  and  the  protection  of  our  coasts,  together  with  the  great  in- 
crease in  our  merchant  marine,  renders  necessary  the  possession  of  a 
navy  by  the  United  States  large  enough  to  protect  our  national  inter- 
ests in  both  oceans."  The  recommendation  of  the  General  Board 
has  been  somewhat  discredited  by  an  earlier  statement  to  the  same 
effect  by  the  Secretary  of  the  Navy  which  was  popularly  interpreted 
as  an  attempt  to  coerce  the  powers  of  Europe  to  assist  in  the  creation 
of  the  League  of  Nations.  A  similar  policy  was,  however,  adopted  in 
1916  by  the  Sixty-fifth  Congress.  In  the  naval  appropriation  act  of 
that  year  it  was  declared  that  it  was  the  policy  of  the  United  States 
to  settle  its  international  disputes  through  mediation  and  arbitration, 
and  that  the  United  States  looked  with  apprehension  upon  a  general 
increase  of  armament  throughout  the  world,  but  realized  that  no 
single  nation  could  disarm  in  the  absence  of  a  common  agreement  of 
the  great  powers.  The  act  then  recited  that,  if  at  any  time  before  the 
construction  authorized  should  have  been  contracted  for,  there  should 
be^e5tl&blished,  with  the  cooperation  of  the  United  States,  an  interna- 


INTERNATIONAL  RECONSTRUCTION        313 

assumption  that  the  nations  recognize  a  dominant  interest  com- 
mon to  them  all,  and  the  necessity  of  collective  action  to  se- 
cure it.  Cooperation  to  maintain  peace  on  a  basis  of  accepted 
principles  of  justice  becomes,  therefore,  the  starting-point  of 
any  effective  plans  of  disarmament.  Once  more  we  are 
brought  round  to  the  primary  problem  of  creating  a  more 
definite  understanding  of  international  rights  and  duties.  The 
persistent  distrust  of  an  international  executive  body  is  largely 
due  to  uncertainty  as  to  the  purposes  for  which  it  might  be 
used.  The  bitter  attacks  in  the  Senate  upon  Article  X  of  the 
Covenant  of  the  League,  which  guarantees  the  territorial  in- 
tegrity and  existing  political  independence  of  the  members  of 
the  League,  as  well  as  the  attacks  upon  Article  XVI,  which 
provides  for  the  economic  boycott  and  possible  military  action, 
were  for  the  most  part  based  upon  the  fear  lest  the  United 
States  might  be  called  upon  to  cooperate  in  carrying  out 
some  decision  of  the  League  to  which  it  could  not  give  its 
approval  For  the  time  being  a  conditional  obligation,  sub- 
jecting the  decisions  of  the  League  to  the  ratification  of  the 
national  Congress,  would  seem  to  be  the  furthest  step  which 
the  public  at  large  is  prepared  to  take. 

Primary  condition  of  international  organization.  The 
primary  condition  of  the  success  of  any  international  organ- 
ization for  the  maintenance  of  peace  is,  therefore,  the  recogni- 
tion by  the  nations  of  the  preeminent  importance  of  the  object 
to  be  attained  and  the  necessity  of  mutual  and  coordinated 
measures  to  attain  it.  A  common  interest  on  the  part  of  the 
nations  in  law  and  order  must  be  supplemented  by  a  collective 

tional  tribunal  "which  shall  render  unnecessary  the  maintenance  of 
competitive  armaments,  then  and  in  that  case  such  naval  expenditures 
as  may  be  inconsistent  with  the  engagements  made  in  the  establish- 
ment of  such  tribunal  or  tribunals  may  be  suspended,  when  so  or- 
dered by  the  President  of  the  United  States."  The  limitation  of  arma- 
ments does  not,  it  is  true,  of  itself  imply  the  abandonment  of  indi- 
vidual self-defense  in  favor  of  collective  action;  but  conversely  the 
connection  between  the  two,  if  the  experience  of  national  govern- 
ments can  be  relied  upon,  is  very  close. 


314       POUTICAL  SYSTEMS  IN  TRANSITION 

responsibility  in  the  establishment  and  maintenance  of  the  in- 
stitutions and  agencies  needed  to  secure  the  desired  object. 
This  collective  responsibility  implies  the  repudiation  of  the 
old  theory  of  sovereignty  which  made  each  state  the  ultimate 
arbiter  of  its  own  claims  and  obligations  and  the  ultimate 
guardian  of  its  own  interests.  The  prevailing  condition  of 
anarchy  in  respect  to  many  of  the  fundamental  rights  and 
duties  of  nations  must  give  way  to  a  constructive  code  of 
law.  A  tentative  division  must  be  made  between  those  in- 
ternal and  domestic  interests,  which  are  essential  to  national 
self-government,  and  those  external  interests  which  are  the 
grounds  of  dispute  between  nations,  and  which  must  be  ad- 
justed on  the  basis  of  the  welfare  of  the  nations  as  a  whole 
as  against  the  selfish  interest  of  the  individual  state.  With 
the  gradual  growth  of  such  a  constructive  code  of  law  the 
scope  of  international  arbitration  must  be  extended  to  cover 
disputes  of  whatever  nature  that  cannot  be  settled  by  direct 
negotiation  between  the  parties.  The  collective  judgment  of 
the  nations  as  a  body  must  be  brought  to  bear  upon  the  contro- 
versies which  threaten  a  rupture  of  peaceful  relations  between 
two  or  more  states.  The  resort  to  arbitration  by  the  dispu- 
tants and  the  submission  of  the  losing  state  to  the  award  of 
the  court  must  be  enforced  by  the  agencies  of  the  international 
organization  through  the  use  of  economic  or  military  measures 
according  to  the  needs  of  the  case.  These  are  the  fundamental 
principles  of  any  international  organization  which  seeks  to 
substitute  law  and  order  for  the  present  international  anarchy. 
That  they  must  have  important  restrictive  effects  upon  the  pres- 
ent sovereign  will  of  the  United  States,  as  well  as  of  every 
other  state,  limiting  in  one  way  or  another  the  legislative, 
executive,  and  judicial  agencies  of  the  Government,  is  de- 
manded by  the  nature  of  the  cgoperation  they  call  for. 
Whether  under  present  conditions  it  is  expedient  to  create  such 
an  international  organization,  whether  the  League  of  Nations 
in  its  existing  form  offers  a  basis  upon  which  to  build  the 
more  effective  agency  required  to  meet  the  needs  of  the  world, 


s 


INTERNATIONAL  RECONSTRUCTION        315 

are  debatable  issues.     What  is  clear  and  indisputable  is  that  at 
no  time,  whether  under  happier  or  less  favorable  auspices  than 
at  present,  can  international  law  in  the  true  sense  of  law  replace 
the  existing  anarchy  except  at  the  cost  of  some  concession  of 
the  traditional  national  sovereignty  and  the  old  arbitrary  de- 
cision by  each  nation  of  what  are  called  "  political "  questions. 
The  conversion  of  public  opinion  into  law.     The  problem 
of   international   reconstruction  is   obviously  larger  than  the 
mere    formulation   of    a   covenant   or   the   creation   of   legal 
agencies  to  give  effect  to  its  provisions.     The  history  of  na- 
tional governments  has  made  it  sufficiently  clear  that  programs 
and  institutions  have  in  themselves  no  saving  grace,  and  that 
they  can  but  depend  for  their  successful  operation  upon  the 
spirit  of  friendly  cooperation  which  animates  them.     Between 
nations  as  between  individuals  self-restraint  and  mutual  for- 
bearance are  essential  conditions  of  reaching  an  adjustment  of 
conflicting  aspirations  and  policies.     No  one  can  witness  to- 
day the  struggle  which  is  going  on  between  the  nations  for 
the   possession   of   the   raw   materials   of   industry,    for  new 
markets  for  surplus  products,  for  favorable  opportunities  for 
the  investment  of  capital   in  undeveloped  countries,  without 
realizing  the  many  obstacles  that  lie  in  the  way  of  effective  in- 
ternational organization.     Mutual  concessions  must  be  made 
and  material  interests  sacrificed,  if  any  appreciable  progress  is 
to  be  made.     The   narrow   nationalism   which   seeks   to  pro- 
mote the  welfare  of  the  individual  state  at  whatever  cost  to 
others  must  be  replaced  by  a  willingness  to  share  in  a  pros- 
perity primarily  accruing  to  the  world  at   large.     The  ideal 
of  a  "  governed  world  "  can  only  be  attained  at  the  price  of 
some  temporary,  perhaps  even  permanent,  loss  of  direct  na- 
tional advantage.     Assuming  a  recognition  by  the  nations  of 
the  necessity  of  such  sacrifices,  it  would  seem  imperative  that 
the  first  step  must  be  taken  towards  creating  definite  institu- 
tions  which   may  give   concrete   expression   to   those   ideals. 
Some  form  of  political  organization  must  be  set  up  which  shall 
provide  a  meeting-place  for  the  representatives  of  the  nations, 


3i6      POLITICAL  SYSTEMS  IN  TRANSITION 

where  the  forces  which  in  different  countries  seek  the  same 
ideal  may  be  directed  to  their  common  purpose,  and  where 
legal  validity  may  be  given  to  organized  public  opinion. 
Agencies  must  be  created  to  which  a  larger  measure  of  juris- 
diction may  by  degrees  be  granted  according  to  the  promise 
which  they  give  of  effective  operation.  To  await  the  creation 
of  an  ideal  League  before  being  willing  to  participate  in  it 
is  to  turn  one's  back  on  the  experience  of  political  develop- 
ment within  national  boundaries. 


■::r' 


*  ..X 


INDEX 


Abrams  v.  United  States,  174. 

Advisory  Commission  to  Council 
of  National  Defense,   188. 

Agricultural  Production  Stimula- 
tion Act,  153. 

Aliens,  see  Enemy  Aliens. 

Alien  Property  Custodian,  func- 
tions of,  181. 

Allotments,  see  War  Risk  Insur- 
ance Act. 

Allowances,  see  War  Risk  Insur- 
ance Act. 

Americanization  of  aliens,  state 
laws  in  aid  of,  216-218. 

Arbitration  of  railway  disputes, 
163. 

Arbitration,  international,  308. 

Arver  v.  United  States,  141. 

Austria-Hungary,  break-up  of,  5ch 

Autocracy,  initial  advantage  of  in. 
time  of  war,  46;  menace  of,  47. 

Baty,  T.  and  Morgan,  J.  H., 
"War,  its  Conduct  and  Legal 
Results,"  91. 

Board  of  Mediation  and  Concilia- 
tion, 163. 

Bolsheviki,  definition  of,  72. 

Bolshevism,  distinct  from  Soviet 
government,  y2. 

Bonus  bill,  149. 

Brailsford,  H.  N.,  "A  League  of 
Nations,"  61,  62. 

British  Constitution,  character  of, 
27. 

British  Empire,  changes  in  the 
Constitution  of,  99. 

British  government,  in  time  of 
war,  74-98. 

Bryce,  Lord,  quoted,  92. 


Budget,  proposed  plan  of  a  na- 
tional, 275. 

Bundesrat,  influence  of  Prussia  in, 
38. 

Burgess,  J.  W.,  **  Political  Science 
and   Constitutional  Law,"  ^7- 

Burns,  C.  D.,  "Political  Ideals," 
65. 

Cabinet  government,  in  Great  Brit- 
ain, 29;  in  time  of  war,  75- 
80;  proposed  introduction  into 
United  States,  269-271. 

Cabinets,  instability  of  French,  33. 

Carroll,  T.  F.,  "Freedom  of 
Speech  and  of  the  Press  in  War 
Time:  the  Espionage  Act,"  177. 

Censorship  of  press,  refusal  of 
Congress  to  provide  for,  169- 
170;  indirect,  170;  constitution- 
'  'V  of,  176. 

Cci  " -nation,  of  French  admin- 
istr  ^'vstem,  34;  versus  de- 

centi  >n,  256. 

Chafee,  .,  'Freedom  of  Speech 
in  War  Time,"  177. 

Checks  and  balances,  in  American 
government,  21 ;  criticism  of,  22 ; 
in  France,  32. 

Civil  Relief  Act,  see  Soldiers  and 
Sailors  Civil  Relief  Act. 

Clemenceau,  G.,  104. 

Cleveland,  F.  A.,  "  Democracy  and 
Reconstruction,"  277. 

Coal,  price  of,  fixed  by  Committee 
on  Coal  Production,  158;  re- 
strictions upon  use  of,  158-159; 
government  operation  of  mines 
in  Great  Britain,  88-89;  pro- 
posed government  ownership  of 
mines  in  United  States,  293-294. 


317 


3i8 


INDEX 


Coalition  Cabinet,  in  Great  Brit- 
ain, 'JT,  in  France,  104. 

Cole,  G.  H.  D.,  quoted,  96 ;  "  The 
World  of  Labor,"  243. 

Collective  responsibility  under  a 
league  of  nations,  302. 

Committee  on  Public  Information, 

'  136;  censorship  functions  per- 
formed by,  136,  170. 

Committee  system  in  Congress,  im- 
pediments resulting  from,  199. 

Compensation,  see  War  Risk  In- 
surance Act. 

Congress,  powers  of,  in  time  of 
war,'  199;  new  powers  needed  by, 
258. 

Constitution,  nature  of  a  written, 
20. 

Constitutional  government,  in  the 
United  States,  1&-24;  in  Great 
Britain,  24-30;  in  France,  30- 
34;  in  Germany,  36-40;  in  Rus- 
sia, 40-42. 

Constitution  of  the  British  Em- 
pire, 99-103. 

Constitution  of  the  United  States, 
in  time  of  war,  115-116. 

Constitutional  unpreparedness  of 
the  United  States,  in. 

Copyrights,  enemy,  control  of,  181. 

Corporations,  use  of  subsidiary, 
201. 

Corwin,  E.  S.,  "The  President's 
Control  of  Foreign  Relations," 
281. 

Council  of  National  Defense,  crea- 
tion, organization,  functions, 
188-191 ;  criticism  of,  190. 

Creel,  G.,  136. 

Crowder,  E.  H.,  "The  Spirit  of 
Selective  Service,"  213. 

Curtis,  L.,  "  The  Problem  of  the 
Commonwealth,"  102. 

Czechoslovakia,  60,  62,  232. 

Dakota   Central   Telegraph  Com- 
pany v.  South  Dakota,  206. 
Debs  v.  United  States,  i73- 


Declaration  of  Independence,  re- 
lation to  self-government  and 
self-determination,   14-15. 

Defense  of  the  Realm  Act,  90-92. 

Democracy,  test  of  by  war,  4-5; 
and  efficient  government,  7-9; 
individual  character  of  in  dif- 
ferent countries,  12;  in  the 
United  States,  13,  15;  in  Great 
Britain,  24;  in  France,  30;  in- 
dustrial, 235-243;  and  freedom 
of  speech,  251-253. 

Democratic  control  over  foreign 
affairs,  253-254,  281. 

Division  of  Conciliation,  Depart- 
ment of  Labor,  163. 

Draft  Act  of  1863,  142-143. 

Duguit,  L.,  "  Manuel  de  Droit 
Constitutionnel,"  104. 

Duma,  powers  of,  42;  electoral 
system  of,  67. 

Efficiency,  in  a  democracy,  7;  in 

time  of  war,  8. 
Emergency      Fleet      Corporation, 

151-152. 
Enemy  aliens,  179-182. 
Espionage  Act,  168-173. 
Espionage    laws,    of    the    several 

States,  218. 

Fairlie,  J.  A.,  "Administrative 
Legislation,"  133 ;  "  British  War 
Administration,"  78;  "National 
Administration  of  the  United 
States  of  America,"  124-125. 

Federalism,  in  the  United  States, 
18-20,  257-258;  in  Germany,  55; 
in  Russia,  TZ\  in  the  British 
Empire,  100-103 ;  as  a  world 
problem,  2(^6-267. 

Fong  Yue  Ting  v.  United  States, 
116. 

Food  Administration,  activities  of, 
156-158. 

Food  and  Fuel  Control  Act,  153. 

Food  Stimulation  Act,  153. 

Ford,  H.  J.,  "The  War  and  the 


INDEX 


319 


Constitution,"  113,  187,  272;  "A 
Program  of  Responsible  Democ- 
racy," 270. 

Four-Minute  Men,  137. 

French  government,  democratic 
character  of,  30 ;  checks  and  bal- 
ances in,  32;  administrative  sys- 
tem of,  34;  in  time  of  war,  103- 
107. 

Frohwerk  v.  United  States,  173. 

Fuel,  restrictions  upon  the  use  of, 
158-159. 

Fuel  Administration,  activities  of, 
15^159- 

Garner,  J.  W.,  "Administrative 
Reform  in  France,"  34. 

General  Munitions  Board  of  Coun- 
cil of  National  Defense,  150. 

Germany,  constitutional  govern- 
ment in,  35-40;  state  socialism 
in,  48-51 ;   new  constitution  of, 

53-59. 

Gompers,  S.,  164. 

Good  Budget  bill,  275. 

Goodnow,  F.  J.,  "  Principles  of 
Constitutional  Government,"  33- 

Governors,  conferences  of  state, 
223-225. 

Gray,  H.  L.,  "  War  Time  Control 
of  Industry,"  87. 

Great  Britain,  constitutional  gov- 
ernment in,  24-30;  government 
of,  in  time  of  war,  74-98. 

Guild  Socialism,  243W. 


Howe,  F.  C,  "Socialized  Ger- 
many," 49. 

Individual  rights,  protection  of  by 
the  Constitution,  23. 

Industrial  Conference,  238. 

Industrial  councils,  in  Germany, 
57. 

Industrial  democracy,  meaning  of, 
235-238 ;  attitude  of  various  rad- 
ical groups  towards,  239-241. 

Insurance,  Soldiers'  and  Sailors', 
see  War  Risk  Insurance  Act. 

International  anarchy,  301. 

International  arbitration,  scope  of, 
308-309;  objections  to  compul- 
sor>%  309-311. 

International  execution,  in  rela- 
tion to  national  armaments,  311- 

313. 

International  legislation,  need  of, 
306-308. 

International  organization,  condi- 
tions  of   success  of,  303-304. 

International  relations,  effect  of 
the  war  upon,  298. 

I.  W.  W.,  industrial  theory  of, 
241. 

Jones  Merchant  Marine  Act,  295. 
Jugoslavia,  60,  63,  130. 

Kaiser,  powers  of,  yj- 

Kenyon  Americanization  bill,  218. 

Knox  V.  Lee,  117. 


Hamilton,  Alexander,  on  powers 
of  Congress  in  time  of  war,  120 ; 
on  powers  of  the  Executive,  185. 

Hamilton  v.  Kentucky  Distilleries 
and  Warehouse  Company,    121, 

154. 

Hammond,  M.  B.,  "  British  Labor 
Conditions  and  Legislation  dur- 
ing the  War,"  90. 

Henderson,  A.,  "  The  Aims  of  La- 
bor," 94,  95. 


Labor,  in  time  of  war,  in  Great 
Britain,  89-90;  in  the  United 
States,  162-168 ;  laws  of  the  sev- 
eral states,  215-216. 

Labor  Party,  in  Great  Britain,  94- 
96;  program  of  reconstruction 
of,  94- 

Lavell,  C.  F.,  "  Reconstruction  and 
National   Life,"   12. 

League  of  Nations,  298-304,  311- 
314. 


320 


INDEX 


Leaving  certificates,  in  Great  Brit- 
ain, 89. 

Lever  Act,  see  Food  and  Fuel 
Control  Act. 

Licencing  system,  200, 

Lincoln,  President,  powers  as- 
sumed by  during  the  Civil  War, 
126. 

Lippincott,  L,  "  Problems  of  Re- 
construction," 157,  159 

Lloyd-George,  D.,  head  of  War 
Cabinet,  78. 


McCall,  S.  W.,  "  The  Business  of 
Congress,"  269. 

Machinery-of-Government  Com- 
mittee, 85. 

McKinley  v.  United  States,  144. 

Mails,  exclusion  of  publications 
from,  in  time  of  war,  176. 

Maine,  Sir  Henry,  quoted,  47. 

Martial  law,  during  the  Civil  War, 
126-127. 

Masses  Publishing  Company  v. 
Patten,  176. 

Mathews,  J.  M.,  "  Principles  of 
State  Administration,"  224. 

Mediation  Commission,  Presi- 
dent's, 164. 

Merchant  marine,  government  op- 
eration of,  294-295. 

Merchant  Marine  Act,  295. 

Milioukoff,  P.,  "  Russian  Realities 
and  Problems,"  68. 

Military  law,  in  Great  Britain,  92. 

Militia,  state,  125. 

Militia,  State  Reserve,  210. 

Milligan,  ex  parte,  121,  127. 

Ministry  of  Munitions,  in  Great 
Britain,  88;  proposed,  in  the 
United   States,  191-192. 

Ministry  of  Reconstruction,  pro- 
gram of,  in  Great  Britain,  96- 
98. 

Minorities,  protection  of,  in  new 
states,  61-62. 

Munitions  of  war,  in  Great  Brit- 


ain, 88;   in  the  United   States, 

150-151. 

Munitions   Standards   Board,   150. 

Munro,  W.  B.  and  Holcombe,  A. 
N.,  "  The  Constitution  of  the 
German  Commonwealth,"  58. 

Nagle,  in  re,  134. 
National  Defense  Act,  150. 
National  Prohibition  Act,  156,  208. 
National  War  Labor  Board,  166. 
Northern  Pacific  Railway  v.  North 
Dakota,  206. 

Orage,     A.     R.,     ed.,     "National 

Guilds,"  243. 
Overman  Act,  provisions  of,  193- 

194. 

Parliament,  in  time  of  war,  in 
Great  Britain,  80-82;  elections 
to,  in  1918,  82;  proposals  for  re- 
construction, 83 ;  in  France,  105- 
107. 

Patents,  control  of  enemy,  181. 

Plumb  Plan,  proposed,  290-291. 

Political  ideals,  war  a  conflict  of, 
5- 

rolitical  theory,  in  relation  to  the 
constitution,  11. 

Politicus,  "  Many-Headed  Democ- 
racies and  the  War,"  47,  80. 

President,  powers  in  time  of  war, 
123-139;  as  commander-in-chief, 
123-126;  as  agent  of  Congress, 
131 ;  a  one-man  executive,  185 ; 
powers  conferred  upon  by  the 
Overman  Act,   193-194. 

President's  Mediation  Commis- 
sion, 164. 

Press,  censorship  of,  169-170. 

Price-fixing,  150. 

Priorities,  determination  of,  151. 

Profiteering,  need  of  federal  con- 
trol over,  259. 

Prohibition,  under  guise  of  food 
conservation,  153-156;  see  War- 


INDEX 


3^21 


time   Prohibition  Act  Volstead 

Act. 
Prussian    theory    of    government, 

35. 
Provost  Marshal  General,  212. 

Railroads,  government  control  of 
in  Great  Britain,  88;  govern- 
ment operation  of,  in  the  United 
States,  159;  return  of,  to  former 
owners,  288;  problem  of  the, 
286-291. 

Reconstruction,  problems  of,  in 
Great  Britain,  92-98;  in  the 
United  States,  229-316. 

"  Reconstruction,  Select  List  of 
References  on  Economic,"  98. 

Reichstag,  democratic  character 
of,  39. 

Reserve  Militia,  organization  of, 
210. 

Rogers,  L.,  "  Problems  of  Recon- 
struction," 98. 

Root,  E.,  speech  on  Panama  Tolls 
Act,  17. 

Ruppert  V.  Caffey,  156. 

Russia,  constitution  in  1914,  40; 
revolution  in,  64;  new  govern- 
ment of,  65-73. 

Sabotage  Act,  see  War  Materials 
Destruction  Act. 

Schenck  v.  United  States,  172. 

Sedition  Act,  170-177;  constitu- 
tionality of,  171-173- 

Sedition  laws  of  the  States,  218. 

Selective  Service  Act,  140-143. 

Self-determination,  enunciated  in 
the  Declaration  of  Independence, 
14 ;  how  far  a  principle  of  inter- 
national law,  231. 

Shipbuilding,  control  over,  151- 
152. 

Shipping  Board,  151. 

Smith,  Munro,  "  Military  Strategy 
and  Diplomacy,"  52. 

Smith,  R.  H.,  "Justice  and  the 
Poor,"  248. 


Smuts,  General  J.,  quoted,  loi. 
Soldiers'  and  Sailors'  Civil  Relief 

Act,  145. 
Sovereignty,  of   state,  in  relation 

to     international     organization, 

299-301. 
Soviet  government,  68-73. 
State  Constabularies,  210. 
State   Councils   of   Defense,   221- 

222. 
State  socialism,  German,  48-51. 
Strikes,    need   of    federal   control 

over  nation-wide,  260. 
Suffrage,   extension  of,   in   Great 

Britain,  93. 
Sutherland,     G.,     "  Constitutional 

Power  and  World  Affairs,"  119, 

174,  198. 

Telegraph  system,  operation  of  by 

government,  161-162. 
Telephone  system,  operation  of  by 

government,  1 61-162. 
Toledo    Newspaper    Company    v. 

United  States,  172. 
Trading    with    the    Enemy    Act, 

177-178. 
Trusts,  federal  control  over,  259. 

United  States  v.  Casey,  144. 
United  States  v.  Standard  Brew- 
ery, 209. 

Vinogradoff,  P.,  "  Self-govern- 
ment in  Russia,"  67. 

Volstead  Act,  see  National  Prohi- 
bition Act. 

Voluntary  agencies,  advantages, 
249. 

Wages,  standardization  of,  166. 
War    Cabinet,    proposed,    in    the 

United  States,   192-193. 
War  Finance  Corporation,   151. 
War  Industries  Board,  150. 
War  Labor  Confe««nce  Board,  165'. 
War  Labor  Policies  Board,  166. 


322 


INDEX 


War  Materials  Destruction  Act, 
178. 

War  Risk  Insurance  Act,  146-149. 

Wheat,  price-fixing  of,  157. 

Whitley  Report,  98,  237. 

Willoughby,  W.  F.,  "  Government 
Organization  in  War  Time  and 
After,"  151,  166,  191,  201; 
"  Problem  of  a  National  Bud- 
get," 201,  276;  "A  National 
Budget  System,"  276. 

Willoughby,    W.    W.,    ''Prussian 


Political  Philosophy,"  36;  "  Con- 
stitutional Law  of  the  United 
States,"  116,  131. 

Wilson,  President,  political  powers 
exercised  by,  during  war,  127- 
131 ;  personal  responsibility  as- 
sumed by,  198. 

Wilson,  Woodrow,  "  Constitu- 
tional Government  in  the  United 
States,"  197. 

Worsfold,  B.,  "  The  Empire  of  the 
Anvil,"  loi. 


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